Citation Nr: 18148841 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 13-17 501 DATE: November 9, 2018 ORDER A rating in excess of 10 percent for arthritis of the left knee is denied. A rating in excess of 10 percent for arthritis of the right knee is denied. A separate 10 percent rating for instability of the left knee is granted. A separate 10 percent rating for instability of the right knee is granted.   FINDINGS OF FACT 1. The Veteran’s left knee arthritis has been manifested by flexion to no worse than 70 degrees and extension to no worse than 5 degrees, with pain. 2. The Veteran’s right knee arthritis has been manifested by painful flexion to no worse than 80 degrees and extension to no worse than 10 degrees. 3. The Veteran has slight instability of the left knee associated with service-connected left knee disability; it does not more closely approximate moderate instability. 4. The Veteran has slight instability of the right knee associated with service-connected left knee disability; it does not more closely approximate moderate instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for arthritis of the left knee, based on limitation of motion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3., 4.7, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. The criteria for a rating in excess of 10 percent for arthritis of the right knee, based on limitation of motion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3., 4.7, 4.71a, DCs 5260, 5261. 3. The criteria for a separate 10 percent rating, but no higher, for left knee instability have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5257. 4. The criteria for a separate 10 percent rating, but no higher, for right knee instability have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1991 to March 1995. This matter is before the Board from a February 2011 rating decision. The Veteran appeared at a Board hearing in September 2014. In April 2015, and again in March 2017, the Board remanded the case for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. Id. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A higher rating can be based on “greater limitation of motion due to pain on use.” See DeLuca, 8 Vet. App. at 206. Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. 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 to constitute functional loss. Id. Arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, DCs 5003, 5010. Normal range of motion for the knee is to 0 degrees in extension and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Under DC 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5260, limitation of flexion of the leg to 45 degrees warrants a 10 percent rating; limitation to 30 degrees warrants a 20 percent rating; a rating higher than 20 percent requires still more limitation of flexion. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg to 10 degrees warrants a 10 percent rating; limitation to 15 degrees warrants a 20 percent rating, and higher ratings require still more limitation of extension. 38 C.F.R. § 4.71a. 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis 1. Entitlement to a rating in excess of 10 percent for arthritis of the left knee. 2. Entitlement to a rating in excess of 10 percent for arthritis of the right knee. This aspect of the Veteran’s service-connected knee disabilities is evaluated under limitation of motion. Over the course of the appeal, the evidence shows a diagnosis of strain that has progressed to degenerative joint disease/arthritis. The VA examination reports conducted during the claim process contain the most probative evidence for limitation of motion. During an October 2010 VA examination, flexion in the right knee was to 90 degrees with pain beginning at 80 degrees, and extension was - 10 degrees. In addition, flexion in the left knee was to 70 degrees and extension was to – 10 degrees. The examiner found that the joint function was not additionally limited by pain or other factors for either knee. VA examination in April 2014 showed flexion in the right knee to 140 degrees with painful motion beginning at 20 degrees, and extension to zero degrees with no evidence of painful motion. Flexion in the left knee was to 140 degrees with painful motion beginning at 30 degrees, and extension to zero degrees with no evidence of painful motion. There was functional loss based on pain on movement. A July 2015 VA examiner reported that right knee flexion was 125 degrees, that left knee flexion was to 130 degrees, and that there was full extension in both knees. Pain was noted and causes functional loss. Another VA examination was conducted in April 2017 pursuant to the Board’s March 2017 remand. Right knee flexion was to 110 degrees and extension to 10 degrees. Left knee flexion was to 110 degrees and extension was to 5 degrees. There is weakened movement and pain. The most recent Board remand was done in part to ensure an entirely adequate VA examination process. The April 2017 VA examination revealed no objective evidence of pain on weight bearing and non-weight bearing, with passive and active range of motion the same, and with no flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the examination is evidence is sufficient for deciding the claims. Other than the left knee extension measurement in April 2017, the range of motion measurements in the VA examination reports do not show a compensable level of limitation of motion for the knees. However, based on the effects of painful motion and other factors, a compensable rating is warranted for both knees. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The currently assigned 10 percent ratings already compensate for this level of impairment. Based on the VA examiners’ assessments of functional loss, repetitive motion, flare-ups, and similar impairment aspects, even higher ratings are not warranted for limitation of motion as the next level measurements are not approximated even with these considerations. Therefore, the preponderance of the evidence is against a rating in excess of 10 percent for service-connected left and right knee arthritis based on limitation of motion. Thus, the benefit-of-the-doubt doctrine is not applicable and a higher rating is not warranted under this aspect of the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to a separate rating for left knee condition. 4. Entitlement to a separate rating for right knee condition. Separate ratings may be warranted for knee conditions beyond limitation of motion when not already compensated by that rating. See 38 C.F.R. § 4.14; Lyles v. Shulkin, 29 Vet. App. 107 (2017). VA treatment records in May 2014 note some instability in October 2008 and August 2010, and findings reported in February 2011 include some bilateral patellar ligament laxity. Regular use of knee braces is noted in VA treatment records in May 2014 and June 2015, as well on VA examination in May 2017. Additionally, the Veteran stated at the September 2014 Board hearing that his knees give out all of the time. Instability testing during all four VA examinations was normal. This calls into question the existence of instability as the examiners expressly found no joint instability and it might be expected that instability would be evident during such testing. Medical evidence is not categorically more probative than lay evidence under DC 5257. See English v. Wilkie, No. 17-2083 (U.S. Vet. App. Nov. 1, 2018). Here, the Board finds that the Veteran’s lay statements, along with the evidence in the VA treatment records, show that he has instability that approximates slight instability. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, a separate 10 percent rating is warranted for both the left and right knee conditions based on instability under 38 C.F.R. § 4.71a, DC 5257. The preponderance of the evidence is against an even higher separate rating as moderate instability is not shown in light of no movement reflected on instability testing. (Continued on the next page)   Lastly, no other separate rating is warranted for impairment not already compensated by the two 10 percent ratings for each knee. For instance, the evidence, including the VA examination reports do not show meniscus/cartilage problems where a separate rating may be warranted under DCs 5258 or 5259. See Lyles, 29 Vet. App. at 107. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor