Citation Nr: 1802664 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-32 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected right knee degenerative joint disease (DJD). 2. Entitlement to a rating in excess of 10 percent for service-connected left knee DJD. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1977 to December 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office. These claims were previously remanded by the Board in April 2015 and May 2017. FINDINGS OF FACT 1. The Veteran's right knee DJD does not manifest with limitation of flexion to 45 degrees or limitation of extension to 15 degrees, even considering painful motion and other factors. 2. The Veteran's left knee DJD does not manifest with limitation of flexion to 45 degrees or limitation of extension to 15 degrees, even considering painful motion and other factors. 3. From July 24, 2017, the Veteran's left knee disability is productive of slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the right knee DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260 (2017). 2. The criteria for a rating in excess of 10 percent for the left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260 (2017). 3. From July 24, 2017, the criteria for the assignment of a separate 10 percent disability rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.14, 4.71a, DC 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Limitation of Motion of the Knees The Veteran's right and left knee disabilities are rated under DC 5260, pertaining to limitation of flexion of the knee. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Limitation of motion may also be rated under DC 5261 for limitation of extension of the knee. Limitation of extension of a leg to 5 degrees warrants a zero percent rating. A 10 percent rating requires that extension be limited to 10 degrees. A 20 percent rating requires that extension be limited to 15 degrees. A 30 percent rating requires that extension be limited to 20 degrees. A 40 percent rating requires that extension be limited to 30 degrees. A 50 percent rating requires that extension be limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is zero to 140 degrees. See 38 C.F.R. § 4.71, Plate II. The Veteran filed a March 2010 claim for increased knee ratings and a March 2010 VA treatment record indicated the Veteran was complaining of bilateral knee pain. Upon examination, full range of motion was noted and x-ray testing showed severe DJD of both knees. The Veteran was afforded a May 2010 VA examination that revealed right knee range of motion to 120 degrees and left knee range of motion to 130 degrees. No pain on range of motion was indicated in the left knee and pain was noted at 120 degrees in the right knee. There was no additional loss of motion after repetitive movement and no instability or subluxation noted. Thereafter, the Veteran submitted a February 2011 notice of disagreement and November 2012 substantive appeal in which he contended a worsening of his bilateral knee disabilities. He indicated he experiences decreased mobility and pain while walking up and down stairs, as well as his knees popping out. He indicated he had received injections in his knees from his physician and that he had considered knee replacement surgery. He noted he disagreed with the results of the previous VA examination as to the severity of his knee conditions and was unable to perform certain activities, such as running. The claims came before the Board in April 2015 and were remanded for a VA examination due to a potential worsening. The Veteran was afforded an August 2015 VA examination in which he reported pain in both knees which increases during activities. He indicated difficulty going up stairs and an inability to walk for more than 30 minutes or run at all. Range of motion testing revealed right and left knee flexion to 110 degrees and extension to zero degrees. The examiner noted pain during range of motion which does not cause functional loss and no additional loss of motion after repetition. Additionally, pain with weight bearing was found and flare-ups were not indicated in either knee. Instability was found in the right knee only. The examiner noted anterior instability of 0-5 millimeters in the right knee. With regard to functional impact of the disabilities, the examiner noted the Veteran's ability to work is impacted, as he reported the inability to walk or stand longer than 30 minutes. The Board notes in a rating decision dated August 2015, the RO granted service connection for instability of the right knee, with a 10 percent rating effective August 17, 2015. An April 2017 appellate brief was submitted which challenged the August 2015 VA examination report as the author of such was a nurse practitioner and not an orthopedic surgeon. The representative asserted that the examiner was not shown to have the necessary expertise to provide an adequate opinion as to the severity of the Veteran's knee disabilities. The claims came before the Board again in May 2017 and were remanded for further development. The Board indicated the August 2015 examination report did not comply with all the requirements laid out in Correia v. McDonald, 28 Vet. App. 158 (2016) and, thus, the claims were remanded for an additional VA examination to determine the current nature and severity of the claims, consistent with Correia. The Veteran was afforded a July 2017 VA examination with a physician. He reported moderate pain in both knees with intermittent popping and instability, as well as swelling behind the right knee since 2014. The Veteran did not report flare-ups; however, he indicated functional loss, including limitations to kneeling, squatting, climbing, running, and prolonged walking, standing, sitting and driving. He also noted regular use of a brace on his right knee. Range of motion testing showed flexion to 90 degrees in the right knee and flexion to 100 degrees in the left knee. Extension was noted to 10 degrees in the right and knee and to 5 degrees in the left knee. Pain was found in both knees during range of motion testing with diffuse tenderness and crepitus. The examiner indicated instability in the right knee only and noted lateral instability of 0-5 millimeters. Updated July 2017 x-rays revealed moderately severe tricompartmental arthritis of both knees. Additionally, the examiner indicated no evidence of pain with weight bearing or non-weight bearing. However, she stated there is pain with passive range of motion causing functional loss. She reported kneeling, squatting, climbing, running, prolonged walking, standing, sitting and driving are limited by the Veteran's bilateral knee disorders. The Board finds that overall the evidence does not support a rating in excess of 10 percent for the bilateral knee disabilities based on limitation of motion. The Board acknowledges the Veteran experiences painful motion with both knees. However, he has been afforded three VA examinations during the appeal period that showed his range of motion with flexion limited to at most 90 degrees in his right knee and 100 degrees in the left knee, with extension limited to at most 10 degrees in the right knee and 5 degrees in the left knee. Further, there are no additional limitations after repetition. The Board acknowledges the Veteran's pain with passive motion and limitations with activities such as kneeling, squatting, climbing, running, standing, sitting and prolonged driving. Even with the noted limitations, the evidence does not reflect that his knee symptoms approximate a functional loss greater than what is already contemplated by the assigned 10 percent ratings. See Mitchell v. Shinseki, 25 Vet. App. 32 at 38-43; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes a 20 percent rating is warranted for limitation of flexion approximating 30 degrees or limitation of extension approximating 15 degrees. Such symptoms have not been exhibited by the objective medical evidence of record, including three VA examinations. Even with limitation of extension shown on the most recent examination, two rating are not warranted for flexion and extension because the flexion is not shown to approximate limitation to 45 degrees for either knee. As noted above, the Board acknowledges the April 2017 appellate brief which challenged the adequacy of the August 2015 VA examination report, as the author was a nurse practitioner and not an orthopedic surgeon. The Board notes the author of the July 2017 VA examination is a physician and her opinion as to the severity of the Veteran's knee disabilities is adequate. It is clear that the examiner reviewed the Veteran's complete record, including prior examinations, and applied her medical expertise to the available evidence. She adequately addressed the Veteran's symptoms and the Board does not find that additional VA examination is needed to evaluate the claims. The July 2017 VA examiner's opinion substantially complied with the Board's May 2017 remand regarding Correia. Moreover, the Veteran did not report flare-ups during such examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the record is sufficient for deciding the claims. In sum, higher ratings of in excess of 10 percent are not warranted for the Veteran's service-connected bilateral knee DJD based on limitation of motion. The preponderance of the evidence is against higher ratings on this basis and, thus, the benefit-of-the-doubt doctrine is not applicable as higher ratings are not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Instability With regard to separate ratings for the knee disabilities, as noted above, in an August 2015 rating decision, the RO granted service connection for instability of the right knee, with a 10 percent rating effective August 17, 2015 (date of the second VA examination). Assignment of separate ratings for limitation of motion and instability is not considered pyramiding. Cf. 38 C.F.R. § 4.14. The Board finds that, based on the evidence of record, and when affording the Veteran the benefit of all reasonable doubt, a separate rating for left knee instability is warranted from July 24, 2017 (date of the third VA examination). DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides for a 10 percent disabling for a slight impairment; a 20 percent disabling for a moderate impairment; and a 30 percent disabling for a severe impairment. The Veteran was afforded May 2010 and August 2015 VA examinations in which testing did not reveal instability of the left knee. The examiner noted anterior instability of 0-5 millimeters in the right knee only. Following the May 2017 Board remand, the Veteran was afforded a July 2017 VA examination. The Veteran reported to the examiner moderate pain with intermittent popping and instability in both knees. Although the examiner found no instability in the Veteran's left knee upon testing, the Board finds slight instability in the left knee was present from the date of the examination, July 24, 2017, based on the Veteran's reported symptoms. The Board acknowledges that in the February 2011 notice of disagreement, the Veteran reported that when he walks, sometimes both his knees pop causing pain. However, this is not a specific report of instability symptoms. Further, the August 2015 VA examiner found no instability in the left knee thereafter. Thus, the earliest that instability in the left knee was factually ascertainable is the July 2017 VA examination and such instability causes slight impairment, supportive of a 10 percent rating under DC 5257. Although the July 2017 examiner found no left knee instability, such instability was reported by the Veteran and medical evidence is not categorically required for this rating. When resolving all reasonable doubt in the Veteran's favor, the Board finds a separate 10 percent rating is warranted for slight instability of the left knee. 38 C.F.R. §4.71a, DC 5257. ORDER A rating in excess of 10 percent for the right knee DJD is denied. A rating in excess of 10 percent for the left knee DJD is denied. From July 24, 2017, a separate 10 percent rating for slight left knee instability is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs