Citation Nr: 18140518 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 12-08 120A DATE: October 3, 2018 ORDER Entitlement to a disability rating in excess of 20 percent from October 26, 2011, to December 10, 2012, for left knee status post-surgery (left knee disability) is denied. Entitlement to a compensable rating from December 11, 2012, to August 13, 2013, and October 1, 2013, to December 28, 2014, for left knee disability is granted. Entitlement to a disability rating in excess of 10 percent from December 29, 2014, and thereafter for left knee disability is denied. REMANDED Entitlement to service connection for right hip disability secondary to service connected disabilities is remanded. FINDINGS OF FACT 1. From October 26, 2011, to December 10, 2012, the Veteran’s service connected left knee disability manifested in flexion limited to no more than 30 degrees. 2. From December 11, 2012, to August 13, 2013, and October 1, 2013, to December 28, 2014, the Veteran’s service connected left knee disability is manifested by painful motion. 3. From December 29, 2014, and thereafter, the Veteran’s service connected left knee disability is manifested by painful motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee disability from October 26, 2011, to December 10, 2012, has not been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes (DCs) 5003, 5260 (2017). 2. The criteria for a compensable rating for left knee disability from December 11, 2012, to August 13, 2013, and October 1, 2013, to December 28, 2014, has been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, DCs 5003, 5260 (2017). 3. The criteria for a rating in excess of 10 percent for left knee disability from December 29, 2014, and thereafter has not been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, DCs 5003, 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1986 to July 1989. In August 2016, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2017, the Veteran testified at a Board hearing. The transcript is of record. 1. Increased Rating Disability evaluations are determined by the application of the facts presented to 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. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The appeal period before the Board is from October 26, 2011, the date VA received the claim for increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 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 for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The record reflects the Veteran has a diagnosis of degenerative arthritis of the left knee. Under Diagnostic Code 5003, degenerative arthritis, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. 4.71a. The Veteran's left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, which pertains to limited flexion of the knee. A 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees and a 30 percent rating applies when flexion is limited to 15 degrees. The Veteran filed a claim for an increased rating for his left knee disability on October 36, 2011. The knee was rated at 20 percent disabling from October 26, 2011, to December 10, 2012. The disability rating was reduced to zero percent from December 11, 2012, until August 13, 2013, at which point the Veteran received a 100 percent convalescent rating due to surgery. On October 1, 2013, the Veteran’s rating returned to zero percent until December 29, 2014, when his rating was increased to 10 percent disabling. At the hearing, the Veteran’s representative alleged that the medical records support a finding of an increase in severity in the 12 months preceding the October 26, 2011, date of claim. After review of the medical records and VA examinations of record, the Board finds an increase in severity prior to October 26, 2011, is not supported. In the year preceding the claim, the medical records indicate the Veteran had some pain associated with his left knee; however, there is no evidence of limited range of motion or a diagnosis of degenerative arthritis until December 2011. The Veteran attended a VA examination in July 2011, where he reported stiffness, tenderness, and pain; however, his x-ray results were normal and his range of motion of the left knee was within normal limits with no additional loss after repetitive use. At the VA examination in December 2011, the Veteran’s x-ray revealed degenerative arthritis and his range of motion for flexion was limited to 40 degrees with pain on movement. Based on this examination, a rating of 20 percent disabling was assigned, effective October 26, 2011, the date of claim. Thus, an increase in severity is not shown in the 12 months preceding the Veteran’s claim for an increased rating. Furthermore, a rating in excess of 20 percent from October 26, 2011, to December 10, 2012, is not warranted. For the next higher rating of 30 percent under DC 5260, the Veteran’s flexion must be limited to 15 degrees. The evidence of records reflects that, at most during this period at issue, the Veteran’s flexion was limited to 40 degrees. Additionally, the Veteran contends he is entitled to a compensable rating for his left knee disability for the periods from December 11, 2012, to August 13, 2013, and October 1, 2013, through December 28, 2014. The Board notes that the period from August 14, 2013, to October 1, 2013, the Veteran received a 100 percent convalescence rating due to surgery; thus, that period will not be considered. In December 2012 the Veteran attended a VA examination and reported left knee pain and difficulty with prolonged standing and walking. Range of motion testing revealed normal range of motion for flexion and extension with no objective evidence of painful motion. Repetitive use testing did not result in additional limitation of range of motion; however, functional loss was shown due to excess fatigability and interference with sitting, standing, and weight-bearing. At the hearing in August 2016, the Veteran testified that from December 2012 through August 2013 he experienced left knee pain and swelling. The Veteran is competent and credible to provide testimony as to the presence of his symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The medical records detailing the Veteran’s continued treatment for his service connected left knee disability reflect the Veteran’s complaints of pain, but do not contain detailed measurements of the Veteran’s range of motion. Therefore, the Board finds that a compensable rating of 10 percent is warranted for painful motion under DC 5003 and 38 C.F.R. 4.59 for the periods from December 11, 2012 through August 13, 2013 and October 1, 2013 through December 28, 2014. As for the period from December 29, 2014 and thereafter, the Board finds the Veteran’s symptoms most closely approximate the severity contemplated by the Veteran’s currently assigned 10 percent rating. In order to warrant the next higher rating of 20 percent under DC 5260, the Veteran’s flexion must be limited to 30 degrees. The Veteran’s range of motion at his January 2015 VA examination reflected limitations of motion no greater than 135 degrees for flexion with objective evidence of painful motion. At the Veteran’s August 2016 VA examination, his range of motion testing revealed limitation of motion no greater than 130 degrees on flexion with pain causing functional loss. As the Veteran’s limitation of motion for flexion was, at most, limited to 130 degrees for flexion during the period at issue, the Board finds an increased rating in excess of 10 percent is not warranted for the period of December 29, 2014 and thereafter. Throughout the entire period at issue, the Board has considered whether separate compensable evaluations are warranted for the left knee under other applicable provisions of the Diagnostic Code. The VA examinations and treatment notes of record do not establish recurrent subluxation or lateral instability in the knee; therefore, a separate rating under DC 5257 is not warranted. The Veteran had measurable range of motion in his left knee throughout the appeal period, thus ankylosis of the knee is not shown and an evaluation under DCs 5256 is not warranted. Furthermore, the record does not reflect dislocated semilunar cartilage to warrant an evaluation under DC 5258 or removal of semilunar cartilage to warrant an evaluation under DC 5259. See 38 C.F.R. § 4.71a. REASONS FOR REMAND 1. Entitlement to service connection for right hip disability secondary to service connected disabilities is remanded. Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent VA examinations for his right hip disability in September 2012 and November 2017. The September 2012 examiner opined that the Veteran right hip disability is less likely than not proximately due to or a result of the Veteran’s bilateral knee disability. The examiner noted that the Veteran’s knee stability, range of motion, strength, gait pattern and alignment are too functional to cause an overuse or degenerative process in the Veteran’s lumbar spine or right hip. However, the examiner did not provide an opinion as to whether the Veteran’s service connected bilateral knee disability aggravated his right hip disability. The November 2017 VA examiner opined the Veteran’s right hip is less likely than not proximately due to or the result of the Veteran’s right knee disability. Additionally, the VA examiner opined the Veteran’s right hip condition was not aggravated beyond its natural progression by the Veteran’s right knee disability. The examiner noted that the Veteran’s right hip pain started in 2013 and he has a 20-year history of knee problems, to include an ACL repair of the right knee in 2013. The examiner reported that it is likely during flare ups that right knee joint weight bearing on the right lower extremity and right hip is decreased; thus, with less weight bearing on the right hip it is less likely that the hip condition is related to the right knee condition. However, the examiner did not consider the effects of the Veteran’s service connected left knee disability. Furthermore, neither medical opinions address whether the Veteran’s right hip condition is due to or the result of his service connected degenerative arthritis of the spine. As such, a remand is necessary to obtain an addendum opinion to address secondary service connection to include aggravation, due to the Veteran’s service connected bilateral knee disabilities as well as the Veteran’s service connected degenerative arthritis of the spine. The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file, including a copy of this remand, and comment on the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or higher) that any right hip disability is proximately due to or the result of the Veteran’s service-connected bilateral knee disorder or back disorder? (b) If the answer to (a) is negative, is it at least as likely as not that the right hip disability is aggravated (i.e., permanently or temporarily worsened) by the service-connected bilateral knee disorder or back disorder? If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. The term “aggravation” means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner should consider and address the Veteran’s testimony and lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Finally, readjudicate the appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel