Citation Nr: 1805149 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-20 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE 1. Entitlement to a rating in excess of 10 percent disabling for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1981 to July 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. By a June 2014 statement, the Veteran withdrew his request for a videoconference hearing before the Board regarding this issue. This matter was previously before the Board in June 2017. At that time, the Board remanded the case to afford the Veteran a new medical examination in compliance with the decision by the Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite, undamaged joint). The Board finds that the RO has substantially complied with its remand instructions. The Board notes that the Veteran has perfected an appeal for a claim of entitlement to service connection for depression, anxiety, or other nervous condition, also claimed as schizophrenia. He has requested a videoconference hearing, and as such, the appeal is not yet before the Board and will not be addressed in this decision. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right knee disability has been manifested by limitation of flexion of the leg to no greater than 60 degrees. 2. Throughout the period on appeal, there has been X-ray evidence of degenerative arthritis in the Veteran's right knee, accompanied by limitation of motion of the right leg due to painful motion and swelling. 3. Throughout the period on appeal, the Veteran's right knee disability has been manifested by limitation of extension of the leg to no greater than 6 degrees. 4. Throughout the period on appeal, the Veteran's right knee disability has been manifested by slight lateral instability, to include the constant use of a cane. CONCLUSION OF LAW 1. A rating in excess of 10 percent disabled for limitation of flexion of the right leg due to degenerative arthritis is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260. 2. A compensable rating for limitation of extension of the right leg is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. The criteria for a separate rating of 10 percent disabled for slight lateral instability of the right knee have been established. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veteran has not 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. Increased Rating for a Right Knee Disability Pertinent Law and Regulation Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). 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. See Johnson v. Brown, 9 Vet. App. 7 (1996). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). When a case presents such an exceptional or unusual disability picture as to render a rating under the schedular evaluation inadequate, the Director of Compensation Service is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities at issue. 38 C.F.R. § 3.321(b). To qualify for consideration of a rating on an extraschedular basis, the disability picture must not be contemplated by existing schedular criteria, with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards Id. There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, No. 15-2818 (Vet. App. March 6, 2017) (holding that either the Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture includes related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the disability requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). Under Diagnostic Code 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 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 applied for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal ranges of motion of the knee are to 0 degrees for extension and to 140 degrees for flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260 for limitation of leg flexion, a noncompensable rating is warranted if leg flexion is limited to 60 degrees; a 10 percent disability rating is assigned for flexion limited to 45 degrees; a 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261 for limitation of leg extension, a noncompensable rating is warranted if leg extension is limited to 5 degrees; a 10 percent disability rating is assigned for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. If applicable, a separate rating may be assigned for subluxation or lateral instability, in addition to a rating for limitation of range of motion, without pyramiding. See VAOPGCPREC 23-97, 9-98. Under Diagnostic Code 5257, a rating of 10 percent disabled is assigned for slight recurrent subluxation or lateral instability of the knee. A rating of 20 percent disabled is assigned for moderate recurrent subluxation or lateral instability of the knee. A rating of 30 percent disabled is assigned for severe recurrent subluxation or lateral instability of the knee. Analysis The Veteran seeks an increased rating for his service-connected right knee disability. By way of background, the Board notes that the Veteran was originally awarded service connection at a noncompensable rating in March 1993 for residuals from a right knee fracture. At that time, the RO rated the disability under Diagnostic Code 5257 for lateral instability. In a March 1995 rating decision, the RO noted that the Veteran had mild lateral instability as well as limitation of flexion of the right knee to 105 degrees. The Veteran also reported that he had pain and periodic difficulty in moving the right knee and that the knee would occasionally lock up. There was crepitus noted on movement. Based on those findings, the RO assigned a rating of 10 percent disabled, continuing the rating under Diagnostic Code 5257 for lateral instability. By an August 2000 rating decision, the RO continued a rating of 10 percent disabled under Diagnostic Code 5257. In November 2001, the RO denied an unrelated claim of entitlement to service connection for a right thumb disability. At that time, without explanation in the rating decision, the RO changed the Diagnostic Code under which it rated the Veteran's right knee disability to Diagnostic Code 5019 for bursitis. In April 2003, the RO continued a rating of 10 percent disabled for the Veteran's right knee disability. The rating decision noted that the rating was based on painful or limited motion of a major joint, but the disability continued to be rated under Diagnostic Code 5019 for bursitis. The Veteran filed a claim for an increased rating on his right knee disability in February 2009. In the March 2010 rating decision currently on appeal, the RO denied the claim. In doing so, the RO stated, "An evaluation of 10 percent is continued from January 31, 1995. A 10 percent evaluation is assigned for slight, recurrent subluxation or lateral instability. This also includes painful motion of the knee with limitation of motion." Despite this explanation of the Veteran's right knee disability, the RO continued to evaluate the disability under Diagnostic Code 5019 for bursitis. In response to the Veteran's notice of disagreement with the March 2010 rating decision, the RO issued an additional rating decision in June 2012. In that decision, the RO awarded a separate, noncompensable rating for limitation of extension of the right knee under Diagnostic Code 5261. At the same time, with no explanation, the RO changed the Diagnostic Code under which it evaluated the initial right knee disability to a rating of 10 percent disabled under Diagnostic Code 5260 for limitation of flexion of the leg. In June 2009, the Veteran underwent a Compensation and Pension Examination with a private medical provider. The examination showed that the Veteran's right leg had flexion limited to 96 degrees and extension limited to 6 degrees. The examiner found objective evidence of painful motion, instability, weakness, and tenderness in the right knee. The Veteran's gait was abnormal, presenting a mildly decreased stance phase on the right side, and he reported regular use of a cane for stability. The Veteran claimed that his ability to stand was limited to about 10 minutes and his ability to walk was limited to about one block. In August 2012, the Veteran underwent a VA examination. At that time, the examiner noted bilateral osteoarthritis. The Veteran reported flare-ups that resulted in an inability to stand, walk, kneel, squat, or bend. He reported popping in the right knee and occasional swelling. Although there was no objective evidence of painful motion on flexion or extension, the Veteran reported that he had pain on movement in both knees that interfered with sitting, standing, and weight bearing. He reported regular use of a cane and a brace for support of the right knee. The examiner noted pain to palpation of the joint or soft tissue of the right knee. There was no objective indication of instability on testing, no evidence or history of recurrent patellar subluxation or dislocation, and no evidence of a meniscal condition. Range of motion testing showed that right knee flexion was limited to 30 degrees, with normal extension. The left knee was also tested for range of motion, with flexion limited to 40 degrees, with normal extension. However, the examiner noted that the Veteran "reported pain and could only flex his knees with a measured ROM to 30 and 40 degrees, yet he sat comfortably on the exam table with legs flexed to 90 degrees." Subsequent to the Board's June 2017 remand, the Veteran underwent a new VA examination in July 2017. There, initial range of motion testing showed the right knee had limitation of flexion to 90 degrees, with normal extension. There was objective evidence of pain noted on both flexion and extension as well as on weight bearing. There was no objective evidence of localized tenderness or pain on palpation and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, after which flexion of the right knee was limited to 80 degrees. The examiner reported significant functional loss due to pain and lack of endurance that limited flexion of the right knee to 70 degrees. Additionally, the examiner reported that pain and lack of endurance associated with flare-ups further limited flexion to 60 degrees. The examiner reported a reduction of muscle strength, to 4 out of a possible 5, on flexion and extension. There was no muscle atrophy, no ankylosis, no subluxation, no patellar dislocation, and no meniscal condition. The examiner reported no objective evidence of lateral instability, but noted that the Veteran constantly used a cane and occasionally used a brace for support. There was objective pain on passive range of motion testing and non-weight bearing testing of the right knee, but not the left knee. The Board notes that the Veteran's right knee disability has involved four distinct Diagnostic Codes throughout the pendency of the claim: Diagnostic Code 5257 for instability, Diagnostic Code 5019 for bursitis, Diagnostic Code 5260 for limitation of flexion of the leg, and Diagnostic Code 5261 for limitation of extension of the leg. There has been no explanation for a rating under Diagnostic Code 5019 for bursitis. At no point during the appeal period has the Veteran shown a diagnosis of bursitis and it has not been referenced in medical records. The record shows that, for VA rating purposes, there are three distinct medical issues involved in this claim: lateral instability, limitation of flexion of the leg, and limitation of extension of the leg. Following the guidance of VAOPGCPREC 23-97, 9-98, separate disability ratings may be awarded for each of these Diagnostic Codes without resulting in pyramiding. Accordingly, the Board must address each disability rating individually. Instability of the Right Knee Regarding Diagnostic Code 5257 for instability of the right knee, the June 2009 examination showed objective evidence of slight instability, for which the Veteran reported regular use of a cane. At the August 2012 and July 2017 examinations, the examiners noted that there was no objective evidence of instability. At both of these examinations, however, the examiners also reported that the Veteran relied on constant use of a cane and occasional use of a brace for support. Furthermore, in an August 2011 affidavit, the Veteran's then fiancé testified that the Veteran had been wearing knee braces for years and had recently been provided with knee braces with steel supports. At the time of the affidavit, the Veteran had installed a steel bar on the shower wall to reduce the chances that he would fall when climbing into and out of the tub. The Board notes that the Veteran's fiancé, as a layperson, was competent to testify to observable symptoms. In March 2010, the RO granted a rating of 10 percent disabled under Diagnostic Code 5257 based on the slight lateral instability and objective evidence of pain. Considering that rating, the Veteran's continued regular use of a cane for stability, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a rating of 10 percent disabled under Diagnostic Code 5257 for lateral instability is warranted throughout the appeal period. Limitation of Flexion and Extension of the Right Knee As noted above, under Diagnostic Code 5260, VA assigns a noncompensable rating for flexion of the leg that is limited to 60 degrees. To warrant a compensable rating of 10 percent disabled, flexion must be limited to 45 degrees. In the June 2009 examination, flexion of the right knee was limited, at most to 96 degrees, which does not warrant a compensable rating. In the August 2012 examination, range of motion testing indicated that the Veteran could not flex his right knee beyond 30 degrees. However, at this examination, the examiner noted that, prior to testing, the Veteran was sitting on the examination table with his legs in a position of flexion to 90 degrees without evidence of difficulty or discomfort. In conjunction with other range of motion testing of record, this raises serious doubts about the credibility of the results of the testing at the August 2012 examination. At the July 2017 examination, initial range of motion testing showed flexion was limited to 90 degrees. Additional factors such as repetitive motion testing, pain and lack of endurance, and flare-ups further limited flexion to 60 degrees. See Deluca, 8 Vet. App. at 206-07 (1995) Throughout the appeal period, credible range of motion testing has shown that flexion has been limited, at most, to 60 degrees. Such limitation does not warrant a compensable rating under Diagnostic Code 5260. Under Diagnostic Code 5261, for a compensable rating of 10 percent disabled, the Veteran must show extension of the leg that is limited to 10 degrees. Throughout the appeal period, extension was limited, at most, to 6 degrees. Accordingly, a compensable rating for limitation of extension of the leg is not warranted under Diagnostic Code 5261. Throughout the appeal period, there has been evidence of degenerative arthritis, established by X-ray findings, and manifested in objective findings of limitation of motion to a noncompensable degree. In such a case, a rating of 10 percent is applied for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Therefore, a separate rating of 10 percent disabled is warranted under Diagnostic Code 5003. Extraschedular Consideration In a November 2017 appellate brief, the Veteran's representative raised the issue of extraschedular consideration under 38 C.F.R. § 3.321(b). Neither the Veteran nor his representative have identified symptoms the Veteran experiences that show a unique disability picture not already contemplated by the schedular rating criteria. Turning to the first step of the Thun extraschedular analysis, with respect to the claim for an increased rating for right knee disability, the Board finds that all of the symptomatology and impairment caused by the Veteran's right knee disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria provide for limitation of motion due to pain, and Diagnostic Codes 5256-5263, specifically provide for disability ratings based on limitation of motion, including as due to pain, lack of endurance, weakness, fatigability, and other limiting orthopedic factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; see also Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca, 8 Vet. App. at 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell, 25 Vet. App. at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatologies of the ailments). In this case, considering the lay and medical evidence, the right knee disability has been manifested by instability, limitation of flexion, pain, painful motion, weakness, and lack of endurance. These findings and symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria). Therefore, the Board finds that the record does not reflect that the Veteran's right knee disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher rating on an extraschedular basis. ORDER An increased rating in excess of 10 percent disabled for limitation of flexion of the right leg, manifested as painful motion, is denied. A compensable rating for limitation of extension of the right leg is denied. A separate rating of 10 percent disabled, but no higher, for slight lateral instability of the right knee is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs