Citation Nr: 1801902 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 09-48 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected right knee tendonitis with limitation of motion. 2. Entitlement to an initial rating in excess of 10 percent for service-connected right knee tendonitis with instability. ORDER Entitlement to an initial rating in excess of 10 percent for service-connected right knee tendonitis with limitation of motion is denied. Entitlement to an initial rating of 20 percent, but no higher, for service-connected right knee tendonitis with instability, is granted. WITNESS AT HEARING ON APPEAL The Veteran FINDINGS OF FACT 1. The service-connected right knee tendonitis is manifested by painful range of motion limited to no less than 60 degrees of flexion and full extension. 2. The service-connected right knee tendonitis with instability is manifested by moderate recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected right knee tendonitis with limitation of motion have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5261 (2017). 2. The criteria for a rating of 20 percent, and no higher, for service-connected right knee tendonitis with instability have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to December 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before a Veterans Law Judge (VLJ) who is no longer available at a hearing in November 2012. The Veteran did not respond to a March 2016 letter advising the Veteran of the unavailability of the VLJ and asking if he wished to have another hearing. All due process has been afforded the Veteran with respect to his right to a hearing. These matters were previously remanded by the Board in October 2014, July 2016, and April 2017. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The November 2014 and August 2016 examinations do not contain measurements of limitation of motion after repetition, the April 2012 examination does not contain range of motion measurements for flare-ups, and the examinations, other than the most recent one, do not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). Nevertheless, additional remand cannot cure these deficiencies, and would thus result in delay with no additional benefit flowing to the Veteran. Soyini v. Principi, 1 Vet. App. 540, 546 (1991). Limitation of Motion of the Right Knee Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, 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. 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. 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. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under Diagnostic Codes 5003 and 5257. Moreover, in VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998), it was found that, even if the veteran did not have limitation of motion of the knee meeting the criteria for a noncompensable evaluation under DC 5260 or 5261, a separate evaluation could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260, a 10 percent rating is in order if flexion of the knee is limited to 45 degrees. A 20 percent rating is in order if flexion of the knee is limited to 30 degrees. A 30 percent rating is in order if flexion of the knee is limited to 15 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent rating is in order if extension of the knee is limited to 10 degrees. A 20 percent rating is in order if extension is limited to 15 degrees. A 30 percent rating is in order if extension is limited to 20 degrees. A 40 percent rating is in in order if extension is limited to 30 degrees, and a 50 percent rating is warranted if extension is limited to 45 degrees. Normal range of motion of the knee is 0-degree extension to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent rating is in order if there is slight recurrent subluxation or lateral instability. A 20 percent rating is in order if there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is in order if there is severe recurrent subluxation or lateral instability. The first question before the Board is whether the Veteran's right knee tendonitis with limitation of motion meets the criteria for a rating in excess of 10 percent. The Board finds that the most probative evidence of record does not establish that the criteria for a higher rating have been met. A November 2007 VA examination noted that the Veteran's active range of motion was flexion to 112 degrees with pain throughout, and full extension with pain throughout. His passive range of motion was 120 degrees of flexion and full extension. There was no loss of motion after repetitive use. A December 2011 treatment note indicated constant pain, particularly during ambulation and prolonged standing, which is relieved by sitting down. An April 2012 VA examination noted constant moderately severe pain, and flare-ups of worsening pain with cold weather and activity. His range of motion was limited to 60 degrees of flexion and full extension, painful at 0 degrees for both flexion and extension. There was no additional limitation after repetitive testing. In November 2012, the Veteran testified at a hearing that he uses a brace every day, and has to frequently take off work because of his knee and ankles. He stated that his knee is aggravated after walking 30 feet, and that he takes a 10-15 minute break before getting up again. He testified that he has a cane, but that he does not use it at work. In a November 2014 examination, the Veteran reported missing approximately 30 days of work in the last year due to knee pain flares with swelling, and increased knee pain towards the end of a workday with subjective complaints of swelling at the end of the day. His range of motion was flexion to 90 degrees and full extension. He had pain with flexion and weight bearing. He was not able to perform repetitive use testing with at least three repetitions because of marked increase in pain after two attempts at flexion. The examiner was unable to say that pain, weakness, fatigability or incoordination significantly limit his functional ability with repeated use over a period of time without resorting to mere speculation because the examiner was unable to assess the Veteran at work, and the Veteran's assertions would be speculative at best. The Veteran described flare-ups 1-3 times monthly that are moderate in severity and last 1-3 days. The examiner found that the examination supported his statements describing functional loss during flare-ups. The examiner was unable to describe the flare-ups in terms of range of motion because it would require the examiner to rely on the untrained observations of the Veteran, and any estimate would be speculative. An August 2016 examination noted that no flare-ups were reported. The Veteran stated that he had constant pain requiring a brace at work. The Veteran's flexion was limited to 110 degrees, and he had full extension. Pain was noted on the exam, but the examiner felt that it did not result in or cause functional loss. There was evidence of pain with weight bearing. The Veteran was unable to tolerate more than two repetitions, and the examiner was unable to determine range of motion over time without resort to speculation because such a determination would require assessment over time by a trained observer, which is not feasible. The August 2017 examination found no flare-ups. The Veteran reported that he could not sit, stand or walk for long periods of time. Flexion was limited to 120 degrees, and there was full extension. The examiner noted pain on examination, but found it did not result in functional loss. There was no additional loss of range of motion after three repetitions. The examination was, per the examiner, neither consistent nor inconsistent with the Veteran's statements regarding functional loss with repetitive use over time. The examiner was unable to say without speculation that pain, weakness, and fatigability limited functional ability with repeated use over time or during flare-ups because the Veteran was not being examined immediately after repeated use over time or during a flare-ups. The Board recognizes that the Veteran has significant knee pain requiring frequent breaks to rest his knee while working or walking. However, the record does not reflect that this knee pain has resulted in flexion limited to 30 degrees, which is required for the next higher, 20 percent, rating due to limitation of flexion, or extension limited to 15 degrees, which is required for the next higher, 20 percent, rating due to limitation of extension. The Veteran stated he was unable to complete the requested repetitions for range of motion testing in November 2014 and August 2016. These examination reports do not provide information regarding limitation of motion expressed in degrees, and there is no indication that additional remand would be able to obtain historical measurements that were not obtained or recorded. The record as a whole does not support a finding that the Veteran is unable to move his knee at all, even during flare-ups, meaning that supplying a range of motion of 0 degrees flexion is not appropriate. It is also inappropriate for the Board to assign a rating based upon speculation regarding what the Veteran's unrecorded limitation of motion might have been when every other measurement of record finds that the limitation of motion is not even compensable under Diagnostic Code 5260 or 5261. There have been five examinations of record, none of which have found limitation of motion measurements that would correspond to a compensable rating, and most of which have found no limitation of motion after repetitive testing. Additionally, the Veteran's painful motion has already been contemplated in his currently assigned 10 percent evaluation under the provisions of 38 C.F.R. § 4.59. The demonstrated functional impairment due to the Veteran's right knee tendonitis with limitation of motion, including pain, do not more nearly approximate the criteria for a higher rating. Therefore, a rating in excess of 10 percent for limitation of motion is not warranted, and the claim must be denied. Right Knee Instability The next question before the Board is entitlement to a rating in excess of 10 percent for instability of the right knee. The Board finds that the criteria for a rating of 20 percent, and no higher, have been met. The November 2007 VA examination noted that the Veteran used a brace for walking, and had weekly locking episodes as well as episodes of dislocation or subluxation 1-3 times per month. A June 2008 treatment note indicated that the Veteran had fallen the night before, and that his knees would give out and cause him to fall. In August 2008, he reported occasional feeling of locking and catching, and the Veteran was advised to continue wearing his brace because of catching, locking, and positive McMurray's test. The April 2012 VA examination found normal joint stability testing, and regular use of brace and cane. June 2012, May 2013, and May 2014 treatment notes indicated that the Veteran had fallen in the past year. November 2012 hearing testimony was that the Veteran's leg gave away so that he fell the other day at work, and that this occurs probably once or twice a month. The November 2014 examination found normal stability testing, and regular use of a brace when working and a cane when not at work. November 2015 and February 2016 treatment notes found no fall in the past year. The August 2016 examination also found no joint instability upon testing, but constant use of a brace and occasional use of a cane. A May 2017 statement from the Veteran indicated that his right knee causes him to lose balance and have frequent falls. The August 2017 examination found 1+ anterior instability, posterior instability, and medial instability, which corresponds to 0-5 millimeters. The Veteran had regular use of a cane. The Board notes that the rating schedule does not define the terms "slight," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6. The objective stability tests record at worst 1+ instability. However, the record also contains multiple references to the Veteran's knee locking resulting in frequent falls. DC 5258 is not applicable because it relates to dislocated semilunar cartilage, and the Veteran does not have dislocated semilunar cartilage. However, DC 5258 indicates that frequent episodes of "locking," pain, and effusion into the joint corresponds to a 20 percent rating. In comparison, the Board finds that in this case the objective evidence of joint instability combined with the frequent episodes of locking and falls throughout the record as well as the Veteran's use of a cane and brace is more appropriately described as moderate, warranting a 20 percent rating under DC 5257, which corresponds with the 20 percent rating assigned for frequent locking under DC 5258. A 30 percent rating, which is assigned for severe instability under DC 5257, is not warranted because lateral instability was objectively normal throughout, and at no point was anterior ,posterior, or medial instability measured as 2+ (5-10 millimeters) or 3+(10-15 millimeters). Additionally, only one examination of record finds objective evidence of instability. Therefore, a rating of 20 percent, and no higher, for instability of the right knee is granted. Neither the Veteran nor his representative has raised any other issue, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (Vet. App. March 17, 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). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Budd, Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs