Citation Nr: 18142521 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-11 299 DATE: October 16, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee degenerative joint disease is denied; a separate 10 percent rating for instability of the right knee is granted, effective October 18, 2016. REMANDED Entitlement to service connection for left knee strain, including as secondary to service-connected right knee degenerative joint disease is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability is manifested by limitation of motion most severely to 45 degrees of flexion due to pain. 2. From October 18, 2016, the Veteran’s right knee disability was manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for the award of a separate 10 percent rating, but no greater, for instability of the right knee have been met from October 18, 2016. 38 U.S.C. 1155, 5107; 38 C.F.R. 3.159, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1985 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction currently resides with the Milwaukee, Wisconsin RO. In April 2017, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. 1. Entitlement to an initial disability rating in excess of 10 percent for right knee degenerative joint disease. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. As noted in the introduction, the Veteran presently has 10 percent rating for his right knee disability. The Diagnostic Code used by the RO is 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board will consider whether the Veteran can receive higher ratings for his knee disabilities under all applicable diagnostic codes. Normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted when extension is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same knee. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004 (2004); 69 Fed. Reg. 59990 (2004). The Board also must consider pain, weakness, excess motion, incoordination, excess fatigability, and other functional limitation factors when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, as noted, VA examiners should test involved joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). A VA examination report from February 2015 diagnosed the Veteran with right knee joint ankylosis. The examiner noted the Veteran’s extensive history of right knee complaints. The Veteran did not report any flare-ups but did report functional loss described as always present knee pain and increased right knee pain with stairs. Right knee flexion was from 0 to 100 degrees and extension was from 100 to 0 degrees. Pain was noted but did not cause functional loss. There was also no functional loss after repetitive use. The examiner noted factors contributing to disability including less movement than normal; disturbance of locomotion; interference with sitting; interference with standing; and pain on movement. In spite of the diagnosed right knee joint ankylosis, the examiner noted that the Veteran did not have ankylosis of the right knee. Muscle strength and stability testing were normal. The Veteran reported regular use of a brace and occasional use of a cane for support. A January 2016 addendum to the February 2015 VA examination noted that the Veteran did not have ankylosis of the right knee and that the correct right knee diagnosis was right knee degenerative joint disease, status post surgery. In an October 2016 VA examination, the Veteran reported constant knee pain aggravated by prolonged sitting or driving. He also reported weekly flare-ups during which he is “practically immobile” and functional loss that renders him unable to perform any activity because of increased stiffness and knee pain. The examiner noted that she was unable to test range of motion because the Veteran “was reluctant to move his right knee because of fear of causing increase[d] pain.” The examiner did, however, note some knee movement when the Veteran performed certain activities like moving from a sitting to a standing position and walking using a cane. Tenderness or pain to palpation was present. Muscle strength testing was normal. As discussed below in greater detail, there was a history of recurrent subluxation and lateral instability but joint stability testing was normal. VA treatment records also contain some right knee findings. In April 2015, the Veteran reported knee pain underneath his kneecap. He also stated that his knees lock up at times. Aggravating activities were sitting too long and taking stairs. Relieving activities included changing positions and wearing a knee brace. On active range of motion, the Veteran was noted to lack 30 degrees on the right side. Passive range of motion was to 70 degrees flexion. In May 2016, active range of motion was flexion to 90 degrees and extension to 0 degrees. The Veteran described his pain as severe, constant, sharp, stabbing, stiff, and throbbing and interfering with sleep. The Veteran’s symptoms increased with bending, squatting, walking, and weight-bearing and improved with ibuprofen, brace, ice, heat, and rest. Muscle strength was normal, as were Lachman’s, posterior drawer, and McMurray’s stability tests. The Veteran reported in a November 2016 orthopedic note that he always had a sharp pain to his knee that “feels like it is constantly being prepped by needles” and was worsened by walking. He was noted to walk with an antalgic gait using a cane. The examiner noted that the Veteran actively would only range his knee for -20 degrees to approximately 45 or 50 degrees and would only let the examiner passively bend his knee to 50 degrees. On review of the evidence, the Board finds that a 10 percent rating for the right knee disability is appropriate based on the reported painful motion. His flexion in each knee was limited to 45 degrees at most. The current 10 percent disability rating for the right knee disability takes into consideration and incorporates the functional loss and impairment due to less movement than normal, painful movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The right knee disability has not been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant a rating higher than 10 percent. See DeLuca; supra. The Board acknowledges the Veteran’s contentions made at the April 2017 Travel Board hearing that the October 2016 VA examination was inadequate in that the VA examiner was preoccupied and did not thoroughly examine the Veteran. The Board finds that the evidence of record, specifically the February 2015 VA examination and the VA treatment records, is sufficient to determine the overall impact of the disability, to include the level of severity during flare-ups. In this regard, the examinations and treatment of record document the impact of the right knee disability on the Veteran’s functioning, and after a sympathetic review of this evidence, the Board finds that this evidence does not indicate that the disabilities more nearly approximate the criteria for a 20 percent rating. The Veteran also contends that a separate rating is warranted for right knee instability. VA treatment records from March 2016 indicate that the Veteran was status post fall due to right knee instability. Upon VA examination in October 2016, the VA examiner noted slight recurrent subluxation and lateral instability of the right knee, however, joint testing did not indicate any joint instability of the right knee. In May 2018, the Veteran reported a recent history of falls and the examining physician noted that the Veteran’s knee gave out due to instability and was being managed by VA. Based on the all the evidence of record, the Board finds the Veteran’s symptoms manifest a separate 10 percent rating under Diagnostic Code 5257 effective October 18, 2016, the date of the VA examination finding instability. The Veteran subsequently reported multiple instances in which he fell due to his knee disability and that he began using a brace and a cane to help with his knee. The Board finds the Veteran had slight instability. However, the Board determines that a higher rating is not warranted because the Veteran’s examinations and medical records show that he did not have a diagnosis of moderate or severe recurrent instability or subluxation and that his right knee was relatively stable upon clinical testing. That is, after careful review of the available medical and lay evidence, the Board finds that instability of the knee was slight and no more severe than contemplated by this separate 10 percent rating. In sum, the Board finds separate 10 percent rating for instability of the right knee is warranted. Otherwise, a rating in excess of 10 percent for a right knee disability is denied. REASONS FOR REMAND 1. Entitlement to service connection for left knee strain, including as secondary to service-connected right knee degenerative joint disease is remanded. Regarding the Veteran’s service connection claim for a left knee disability, the Board finds the January 2016 nexus opinion of record inadequate. An adequate medical opinion, for the purposes of evaluating a Veteran’s disability, provides rational analysis that takes into consideration the Veteran’s lay statement and medical history to support its conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Here, with respect to the Veteran’s contention that his left knee disability is secondary to his service-connected right knee disability, the examiner stated that it was less likely than not his left knee condition was a result of or was permanently aggravated by the service-connected right knee condition. However, the examiner only provided an opinion regarding causation and not aggravation. For this reason, a remand is necessary to obtain an adequate opinion before the Board can adjudicate this claim. The matter is REMANDED for the following action: 1. The AOJ should obtain any outstanding VA treatment records not already associated with the claims file. 2. After completing directive #1, claims file should be returned to the January 2016 examiner or if that examiner is not available, to a similarly qualified examiner for a supplemental opinion answering the following questions: Is the Veteran’s left knee disability at least as likely as not (50 percent or greater probability) related to service? In the alternative, is the Veteran’s left knee disability at least as likely as not (50 percent or greater probability) caused by his service-connected right knee disability; and Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability has been aggravated by his service-connected right knee disability. The term “aggravated” in the above context means a permanent worsening of his symptoms, and not temporary or intermittent flare-ups, which resolve and return to the baseline level disability. A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel