Citation Nr: 18156700 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 14-25 194 DATE: December 10, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for left knee pellegrini-stieda syndrome (loss of motion) is denied. Entitlement to an initial rating of 10 percent, but no higher, for left knee pellegrini-stieda syndrome (instability), effective November 18, 2010, is granted. REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for an acquired psychiatric disorder, including bipolar disorder, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Since the award of service connection, November 18, 2010, the Veteran’s service-connected left knee pellegrini-stieda syndrome (loss of motion) has been manifested by subjective complaints of pain and limitation of motion, without additional functional loss due to pain, weakness, incoordination, fatigue, or other symptoms so as to limit flexion to 30 degrees or less or limit extension to 10 degrees or more, ankylosis, dislocation or removal of semilunar cartialge, impairment of the tibia or fibula with moderate knee or ankle disability, or genu recurvatum. 2. Since the award of service connection, November 18, 2010, the Veteran’s left knee pellegrini-stieda syndrome (instability) has been manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability evaluation in excess of 10 percent left knee pellegrini-stieda syndrome (loss of motion) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Code 5260, 5262. 2. The criteria for an initial disability rating of 10 percent, but no higher, for left knee pellegrini-stieda syndrome (instability) have been met, effective November 18, 2010. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1977 and from May 1980 to July 1984. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in September 2017. A transcript of the hearing has been associated with the record. The Board previously remanded this case in February 2018. At that time, the Board found that the duties set forth in 38 C.F.R. § 3.103 (c)(2) were complied with at the hearing consistent Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board also finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the its prior remand directives with respect to the issues decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial rating in excess of 10 percent for left knee pellegrini-stieda syndrome (loss of motion) The Veteran is seeking an initial higher rating for his left knee disability. By way of background, in an August 2011 rating decision, the AOJ originally awarded service connection for a left knee disorder and assigned a 10 percent rating, effective November 18, 2010, under 38 C.F.R. § 4.71a, Diagnostic Code 6262 for impairment of the tibia and fibula. However, in a June 2014 rating decision, the AOJ determined that painful, limited flexion was the primary symptom associated with the Veteran’s left knee disorder. As such, the AOJ continued the 10 percent rating under Diagnostic Code 5260 for limitation of flexion. See Butts v. Brown, 5 Vet. App. 532 (1993), see also Pernorio v. Derwinski, 2 Vet. App. 625 (1992). For purposes of the analyses below, the Board notes that a disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Board notes that recently, the United States Court of Appeals for Veterans Claims (Court) held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this regard, review of the most recent June 2017 VA examination report, which is discussed further below, showed that joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and with range of motion measurements of the opposite undamaged joint was done in compliance with Correia. The examiner specifically observed that there was objective evidence of pain on passive range of motion testing and non-weight bearing testing of the left knee. The Veteran’s left knee disability has been rated based on limitation of motion of the knee. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. VA’s General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent rating is assigned when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, Diagnostic Code 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under Diagnostic Code 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. The words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). After reviewing the evidence of record, the Board finds that an initial rating in excess of 10 percent for the Veteran’s left knee disability under Diagnostic Code 5260 for limitation of flexion is not warranted. While limitation of motion has been observed, the probative evidence does not show that that flexion was limited to 30 degrees or more to warrant a higher rating under Diagnostic Code 5260. The most restrictive range of motion documented for the left knee during the course of the appeal was 60 degrees flexion at the June 2017 VA examination. Moreover, flexion of the left knee was 115 degrees at the March 2011 VA examination, and 130 degrees at the December 2013 and May 2014 VA examination. In sum, all the VA examinations document flexion of both knees to be much higher than 30 degrees. Further, while VA clinical records document reports of left knee pain, they do not document more restrictive range of motion findings. Moreover, as extension at all of the VA examinations has been to zero degrees, a higher or separate compensable rating for limitation of extension is not warranted under Diagnostic Code 5261. The Veteran has reported chronic left knee pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra, and Mitchell, supra. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination that would limit motion to such a degree so as to warrant ratings in excess of the 10 percent assigned during this period. In this regard, the most recent June 2017 VA examiner found that following repetitive use testing, flexion of the left knee was limited to 50 degrees. Prior VA examinations did not find any additional functional loss following repetition. Moreover, the June 2017 VA examiner also determined that during flare-ups, flexion would be limited to 45 degrees. See Sharp v. Shulkin 29 Vet. App. 26 (2017). As such, even considering additional functional loss during flare-ups, the criteria for a higher rating are still not met. Moreover, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, an initial rating in excess of 10 percent is not warranted based on limitation of motion. Moreover, with regard to Diagnostic Code 5258, there is no evidence of dislocation with frequent episodes of locking and effusion into the joint to warrant a separate 20 percent rating under this Code during this period. There is no competent medical evidence showing that the Veteran had frequent episodes of locking and effusion. The June 2017 VA examination specifically found that there was no history of recurrent effusion. As this Code uses the conjunctive “and” when listing the criteria, a rating under this Diagnostic Code requires that all symptoms be present. Thus, Diagnostic Code 5258 is not for application. Moreover, a separate rating under Diagnostic Code 5259 is not appropriate as the Veteran does not have a cartilage or meniscus condition of the left knee. Additionally, as the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262 or 5263, respectively. The Board recognizes that the Veteran was previously rated under Diagnostic Code 5262 for tibia and fibula impairment. However, the most recent VA examination clearly found that the Veteran did not suffer from an tibial or fibular impairment. Again, the Veteran’s primary symptom is limitation of flexion with pain and, thus, an approprate rating has been assigned under Diagnostic Code 5260. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his left knee disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability ratings reflect. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), are appropriate for the Veteran’s left knee disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 10 percent for left knee pellegrini-stieda syndrome (loss of motion). In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to an initial higher for left knee pellegrini-stieda syndrome (instability) In the June 2014 rating decision, the AOJ also awarded a separate 10 percent disability rating for slight instability of the left knee, effective May 29, 2014, the date of examination. Subsequently, in an August 2017 rating decision, the AOJ decreased the rating to noncompensable, effective June 15, 2017. The Board observes that the AOJ did not apply the notification requirements of 38 C.F.R. § 3.105 (e) prior to reducing the rating for left knee instability to noncompensable in the August 2017 rating decision. However, the AOJ’s rating reduction for left knee instability did not result in any reduced compensation payable to the Veteran as he maintained a combined 70 percent rating for his service-connected disabilities. Thus, the procedural protections of 38 C.F.R. § 3.105 (e) do not apply. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days’ notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran). Based on the evidence of record, the Board finds that the Veteran’s left knee has demonstrated slight instability since the award of service connection for the Veteran’s left knee disorder. Although there were no objective findings of left knee instability at the March 2011 and June 2017 VA examinations, the Veteran has consistently reported having to wear bilateral knee braces for instability. The Veteran is competent to report instability and give way. See English v. Wilkie, No. 17-2083, 2018 U.S. App. Vet. Claims LEXIS 143 (November 1, 2018). Moreover, the May 2014 VA examination showed slight medial-internal instability. Thus, the evidence is essentially in a state of equipoise as to whether he has suffered from instability throughout the course of the appeal. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted under Diagnostic Code 5257 since the award of service connection, effective November 18, 2010. Nevertheless, the left knee instability equates to no more than slight instability and thus, the evidence does not support the assignment of an even higher rating due to instability. In this respect, the Board notes that the May 2014 VA examiner described the Veteran’s instability as slight. Moreover, the other VA examiners did not observe any objective findings of instability on examination. Therefore, the overall findings are not indicative of moderate or severe instability in the left knee. As such, entitlement to a 10 percent disabling, but no higher, under Diagnostic Code 5257, is warranted, effective November 18, 2010. REASONS FOR REMAND Entitlement to service connection for low back disorder, to include as secondary to service-connected disabilities, and left hip disorder, to include as secondary to service-connected disabilities, are remanded. The Veteran has asserted that his current low back disorder and left hip disorder stem from injuries incurred when he jumped from a 3rd floor window while in service. Service treatment records document the incident in service in September 1981, but are silent with respect to any injuries to the back or left hip. However, an October 1981 record does note a complaint of back pain. In the alternative, the Veteran has asserted that his disabilities are secondary to his service-connected right ankle, right knee, left knee and right hip disabilities. The July 2008 VA examiner found that the lumbar spine pain with radiculopathy to the right hip was unrelated to the right knee and right ankle, and likely due to aging attrition and long history of fairly heavy manual labor. Further, the March 2011 VA examiner found that the Veteran’s low back and left hip pain were not secondary to his right ankle or right knee disorders. The examiner simply found that the Veteran’s spondylosis and degenerative disc disease were a natural progression of his low back pain. The examiner continued that the Veteran reported the onset of back pain after the fall in 1981. The examiner also reported that the Veteran’s left hip was most likely a result of a pinched nerve in the back. However, an x-ray of the hip showed that mild vascular calcification was present. Nevertheless, the May 2014 VA examiner found that the Veteran’s back condition was not related to service because there were no significant back symptoms until around 2006. As these opinions appear to contradict each other as to the onset of back pain and the July 2008 and May 2014 examiners did not address the October 1981 clinical record documenting back pain, the Board finds that the opinions are not supported by sufficient rationale. Moreover, the March 2011 VA examiner did not address whether the Veteran’s back and left hip disorder are secondary to his other service-connected disabilities, or discuss the numerous reports that the Veteran had an altered gait due to his service-connected disorders. As such, the Board finds that a new examination with opinion is necessary. Entitlement to service connection for and an acquired psychiatric disorder, including bipolar disorder, to include as secondary to service-connected disabilities The Veteran asserted that his depression symptoms manifested in service when he suffered the injury to his right ankle. The Veteran has also asserted that his psychiatric disability is secondary to his service-connected disabilities. The Veteran has not been afforded a VA examination with respect to this issue. In light of the above, the Board finds that an examination with opinion is necessary. The matters are REMANDED for the following action: 1. Obtain VA treatment records from May 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disorder and left hip disorder. The examiner must opine whether it is at least as likely as not that any disorder (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including the September 1981 jump from third floor window. For any disability found not to be related to service, the examiner must also opine whether it is at least as likely as not that any low back disorder or left hip disorder are (1) proximately due to service-connected disabilities, or (2) aggravated beyond its natural progression by service-connected disabilities. In proffering this opinion, the examiner must address the Veteran’s altered gait. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed acquired psychiatric disability. The examiner must opine whether it is at least as likely as not (1) related to an in-service injury, event, or disease, including the September 1981 incident, (2) proximately due to service-connected disabilities, or (3) aggravated   beyond its natural progression by service-connected disabilities. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats