Citation Nr: 18148199 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 12-27 289 DATE: November 7, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for right knee arthritis is denied. Entitlement to an initial rating in excess of 10 percent for left knee arthritis is denied. Entitlement to a separate 20 percent rating for moderate subluxation of the right knee from June 20, 2017 is granted. Entitlement to a separate 10 percent rating for slight subluxation of the left knee from June 20, 2017 is granted. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Arthritis in the right knee has not caused flexion limited to 30 degrees or extension limited to 15 degrees. 2. Arthritis in the left knee has not caused flexion limited to 30 degrees or extension limited to 15 degrees. 3. Since June 20, 2017, the Veteran has had moderate subluxation in his right knee. 4. Since June 20, 2017, the Veteran has had slight subluxation in his left knee. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for arthritis of the right knee are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 (2018). 2. The criteria for an initial rating in excess of 10 percent for arthritis of the left knee are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 (2018). 3. The criteria for a separate rating of 20 percent, for subluxation of the right knee since June 20, 2017, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2018). 4. The criteria for a separate rating of 10 percent, for subluxation of the left knee since June 20, 2017, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1954 to December 1958. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2013, the Board denied the claims on appeal. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for remand filed by the parties to this matter, the Court, in June 2014, vacated the Board decision and remanded the case. In October 2014, April 2017, and January 2018, the Board remanded the claims for additional development. The Board finds that there has been substantial compliance with its remand directives. With regard to the most recent remand in January 2018, the Board finds that an August 2018 email detailing the credentials of the June 2017 VA examiner (i.e., MSN, NEd, FNP-C) satisfies the representative’s earlier requests for information regarding the examiner’s professional background. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating On October 9, 2008, the Veteran filed an original claim of service connection for bilateral knee disability. In the April 2011 rating decision on appeal, the RO granted the claim and assigned separate 10 percent initial ratings for each knee, effective the date of claim. In the decision below, the Board will consider whether higher ratings have been warranted at any time since October 9, 2008. See 38 C.F.R. § 3.400 (2018). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 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 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. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When assessing the severity of a musculoskeletal disability that is rated based on limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent (“flare-ups”) due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). Degenerative arthritis 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 however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2018). The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. Under the criteria for limitation of flexion for the leg, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. A 30 percent rating applies where flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Under the criteria for limitation of extension, a noncompensable rating is assigned for a limitation of extension to 5 degrees. When extension is limited to 10 degrees, a 10 percent rating is assigned. A 20 percent rating is appropriate where extension is limited to 15 degrees. A 30 percent rating is assigned in the case of extension limited to 20 degrees. A 40 percent rating is appropriate where extension is limited to 30 degrees. A 50 percent rating is assigned for limitation of extension to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. Under DC 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," under 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. In this matter, the evidence indicates that ratings in excess of 10 percent are unwarranted for arthritis and limitation of motion. However, additional separate ratings are warranted for subluxation – 20 percent for moderate subluxation of the right knee and 10 percent for slight subluxation of the left knee. The evidence in this matter consists of lay statements, VA treatment records, and VA examination reports dated in February 2011, August 2012, August 2015, and June 2017. The February 2011 VA examiner noted use of Tylenol for treatment of knee pain. The Veteran noted his knee pain and that he did not have deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, effusions, symptoms of inflammation, or flare-ups. The Veteran said that he could stand for three to eight hours with short periods of rest and could walk for a quarter of a mile. He used a cane on a frequent basis. On examination gait was antalgic, but there was no evidence of abnormal weight bearing, loss of bone or part of a bone, or inflammatory arthritis. Both knees had crepitation and clicks or snaps, but there was no instability, patellar or meniscus abnormalities, abnormal tendons or bursae or other knee abnormalities. The examiner diagnosed the Veteran with bilateral joint arthritis and felt there were significant effects on his usual occupation due to problems with lifting and carrying due to pain. As to daily activities, the examiner also felt that the Veteran had severe limitations on exercise and was prevented from playing sports. At range of motion testing in March 2011 flexion of both knees was to 125 degrees and extension was to 0 degrees. There was no objective evidence of pain following repetitive motion or additional limitations after three repetitions of range of motion. The August 2012 VA report noted that the Veteran did not report flare-ups that impacted the function of the knees or lower legs. Range of motion of the right knee was flexion to 115 degrees with pain beginning at 115 degrees and extension to 0 degrees with no evidence of painful motion. Left knee flexion was to 125 degrees with pain beginning at 125 degrees. Extension of the left knee was not indicated on the original examination report, and a September 2012 report addendum stated that it was to 0 degrees without pain. Range of motion of both knees was the same on repetitive-use testing, although the examiner also indicated that after repetitive use the Veteran had less movement than normal and pain on movement. Muscle strength and joint stability were normal upon testing, and there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran used a cane to walk on a regular basis and he had never had knee surgery. There was no x-ray evidence of patellar subluxation or significant other diagnostic test findings or results. The examiner did not find that the Veteran's knees impacted his ability to work. The Veteran wrote on his October 2013 VA Form 9 that his current disability "prohibited" some activities of daily living. This sentiment was reiterated by his spouse in December 2014 correspondence which noted “slip and falls,” help with stairs, and the need for resting from leg pain. December 2014 correspondence from a private physician also identified these limitations, noting that pain from the arthritis rendered the Veteran incapable of standing more than 15 minutes, walking more than 200 feet, and generally moving without assistance of a cane or walker. The August 2015 VA examiner did not report any flare-ups. Range of motion in the right knee revealed flexion and extension to 70 degrees and 60 degrees in the left with pain but no additional functional loss. It was noted that the Veteran was able to perform repetitive use testing. Muscle strength testing was normal as were stability tests. The knees required regular use of a cane, walker and scooter. X-ray study of the right knee revealed mild medial compartment and patellofemoral degenerative joint disease. The pertinent diagnosis was severe degenerative joint disease of the bilateral knees. The June 2017 VA report notes that the Veteran denied flare-ups but reported functional impairment of daily activities including stairs, walking standing and running. Physical evaluation revealed range of motion results of 120 degrees flexion and extension in both knees which was “normal” for his “advanced age” of 80 years. Pain reported on extension without additional functional loss and pain on weight bearing. Strength testing was diminished, 3/5 flexion and 4/5 extension in both knees. Moderate subluxation in the right knee and slight in the left knee were noted as was mild effusion bilaterally. No instability was identified and a meniscal cartilage condition was noted which resulted in frequent episodes of right sided joint locking and pain. Regular use of a walker was reported by the Veteran. VA treatment records dated during the appeal period consistently note arthritic changes in the knees and note the Veteran’s complaints of knee pain and instability and his use of assistive devices. See e.g., December 2014 VA Physical Medicine note (“Veteran’s primary complaint is difficulty with knee pain “24/7”, he relates he falls at times about twice a day. Relates his legs give out. He does not fall if he uses his walker. He feels he is able to get around inside his home but is limited long distances in the community.”); April 2018 treatment record noting (“difficulty with arthralgias bilateral knees”). Based on this evidence, increased ratings under DCs 5260 and 5261 are unwarranted. The evidence clearly shows pain on motion in each knee but not to such an extent that the criteria for a 20 percent rating has been approximated. The evidence has not shown that, even with pain, flexion has been limited to 30 degrees or extension has been limited to 15 degrees. Further, the evidence has not indicated that range of motion (noted during the VA the examinations) is different when considering evidence of flare ups, active and passive range of motion, and range of motion in weight-bearing and non-weight-bearing situations. See 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158 (2016) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nevertheless, the June 2017 VA medical findings indicate that separate compensable ratings are warranted under DC 5257 for bilateral subluxation – slight in the left knee and moderate in the right knee. The record is not clear that these impairments are unrelated to the service-connected arthritis. As such, these disorders should be service connected and rated as well. See Mittleider, supra. REASONS FOR REMAND Entitlement to TDIU, to include on an extraschedular basis, is remanded. Entitlement to an award of a TDIU prior to May 10, 2016, to include on an extraschedular basis is remanded. In his January 2015 application for TDIU, the Veteran indicated that he has been unable to work due to symptomatology associated with his service-connected knee disabilities. A September 2014 private evaluation determined that due to the Veteran's work history and sub-high school education level, his service-connected disabilities precluded gainful employment since he last worked in 2008. See September 2014 Vocational assessment. Similarly, the August 2015 VA examiner concluded that the Veteran’s “severe Bil. Knee Arthritis” would render him unable to secure any job requiring using working movement,” and the June 2017 VA examiner opined that the disabilities “would limit Veteran's ability to perform a physical work;” noting that “sedentary work” would not be precluded. Considering this evidentiary background, and given that the appeal period dates from October 2008, the TDIU claim is referred to VA's Director, Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: Refer the Veteran's TDIU claim to VA's Director, Compensation Service for extraschedular consideration during the appeal period beginning October 2008. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcus Colicelli, Counsel