Citation Nr: 18148530 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-34 558 DATE: November 7, 2018 ORDER Entitlement to a rating in excess of 30 percent for a left knee disability is denied. FINDING OF FACT Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s left knee disability has not manifested chronic residuals consisting of severe painful motion or weakness, ankylosis, limitation of extension to 30 degrees, or impairment of the tibia and fibula. There is no objective medical evidence of slight, moderate, or severe recurrent subluxation or lateral instability of the left knee. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a left knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5257, 5261, 5262 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran challenges the adequacy of the May 2016 VA examination, contending that the examiner incorrectly wrote “no instability of record.” See July 2016 Form 9. Review of the examination report shows no such notation. Instead, the examiner noted the Veteran’s complaints of instability, but determined that there was no recurrent subluxation or lateral instability based on the results of joint stability testing. Neither the Veteran nor his representative has raised any other 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). Entitlement to a rating in excess of 30 percent for a left knee disability. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). The Veteran underwent a total left knee arthroplasty in January 2013 and filed a claim of service connection for post-operative residuals. A November 2013 rating decision granted service connection for the left knee replacement with a temporary total rating from January 14, 2013 to February 28, 2014. A 30 percent rating was assigned from March 1, 2014. The Veteran’s left knee disability is rated under Diagnostic Code 5055 for knee replacement (prosthesis). A 60 percent rating requires chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Diagnostic Code 5256 addresses ankylosis of the knee. A 60 percent rating requires extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. A 50 percent rating requires ankylosis in flexion between 20 degrees and 45 degrees. A 40 percent rating requires ankylosis in flexion between 10 degrees and 20 degrees. Diagnostic Code 5257 address other impairment of the knee. A 30 percent rating requires severe recurrent subluxation or lateral instability. A 20 percent rating requires moderate recurrent subluxation or lateral instability. A 10 percent rating requires slight recurrent subluxation or lateral instability. Words such as “moderate,” “moderately severe,” 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.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5261 addresses limitation of extension of the leg. Under that code, a 50 percent rating requires extension limited to 45 degrees. A 40 percent rating requires extension limited to 30 degrees. Diagnostic Code 5262 addresses impairment of the tibia and fibula. A 40 percent rating requires nonunion of the tibia and fibula with loose motion, requiring brace. The Veteran is not entitled to a rating in excess of 30 percent for his left knee disability. The evidence of record, including the September 2014 and May 2016 VA examination reports, shows that the Veteran experiences pain and some weakness. However, neither examination report indicates chronic residuals consisting of severe painful motion or weakness. Indeed, despite his reported pain and use of a cane and brace, the Veteran still engages in woodworking, shopping, and walking around his farm. Such is not indicative of symptomology approximating a 60 percent rating. The Board notes the Veteran’s assertion that his prosthesis is loose and may be replaced. See February 2015 NOD. Although the results of April 2014 imaging indicated potential prosthesis loosening, subsequent imaging in October 2014 showed that the prosthesis appeared stable. See June 2016 CAPRI Records. The Board has considered whether the Veteran’s disability warrants a higher rating under any other applicable diagnostic code. There is no evidence of ankylosis or impairment of the tibia and fibula, which precludes higher ratings under Diagnostic Codes 5256 and 5262. The Veteran’s left knee extension was limited to, at worst, 5 degrees in September 2014, which does not meet the criteria for a higher rating under Diagnostic Code 5261. The Board acknowledges the competent and credible lay reports of left knee instability. However, the VA examination reports indicate that the results of joint stability testing were normal. The DBQs were completed by medical professionals who formulated those conclusions based on a physical examination, review of the record, and interview of the Veteran. The Board has no basis to contradict the conclusions made by the examiners. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The medical evidence outweighs the lay evidence of instability. The Board has considered whether a higher rating for the Veteran’s left knee disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially “absurd results.” Id. at 43. The additional limitation (functional loss) experienced by the Veteran due to pain was accounted for by the VA examiners when determining his range of motion. The examiners reported range of motion that included specific findings pertaining to pain. As to the lay statements describing the Veteran’s symptomology and his reports of pain during flare-ups, weakness, lack of endurance, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. The presently assigned left knee rating accounts for the Veteran’s complaints of pain. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel