Citation Nr: 18157210 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 18-30 109 DATE: December 12, 2018 ORDER Service connection for left knee condition is denied. An increased rating higher than 10 percent for post injury degenerative changes, right knee is denied. A compensable initial rating for right knee, limitation of extension is denied. FINDINGS OF FACT 1. The Veteran’s left knee condition is neither proximately due to nor aggravated by his service-connected right knee disability, and is not otherwise related to an in-service injury, event, or disease. 2. The Veteran’s right knee disability is characterized by pain and noncompensable limitation of motion (limitation of flexion to 90 degrees and limitation of extension to 5 degrees). CONCLUSIONS OF LAW 1. The criteria for service connection for left knee condition have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 2. The criteria for an increased rating higher than 10 percent for post injury degenerative changes, right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5003, 5260 (2018). 3. The criteria for a compensable initial rating for right knee, limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5261 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to August 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Service connection for left knee condition The Veteran asserts that his current left knee condition is causally related to his service connected right knee disability. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of left knee strain, the preponderance of the evidence is against finding that the Veteran’s left knee strain is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In a December 2014 letter, the Veteran’s physician noted increased circumference at the midcalf and ankle of the Veteran’s left leg with firm woody cobblestone like plaques covering the entire lower leg with 3+ pitting edema. The February 2015 VA knee examination for the Veteran’s earlier right knee increased rating claim did not include a left knee diagnosis, but did note left knee limitation of extension (without pain). The September 2017 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) examiner opined that the Veteran’s claimed left knee condition is less likely than not related to his service connected post injury degenerative changes of the right knee. The rationale was that the Veteran stated his left knee pain started when he started having severe left lower extremity edema. When the edema was worse, his knee pain was worse. Wearing compression stockings eased the knee pain. The record does not contain any indication that the Veteran’s left leg plaques with pitting edema are causally linked to his right knee disability. As such, an opinion regarding the etiology of the Veteran’s left knee edema is unnecessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006) (providing the criteria for determining whether VA must provide a medical examination and/or medical opinion). While the Veteran believes his left knee condition is proximately due to or the result of his service-connected right knee disability, he is not competent to provide a nexus opinion in this case. Despite the Veteran’s assertion that his right knee disability caused him to overcompensation with his left knee, resulting in an abnormal gait which ultimately has led to his left knee condition, the objective medical evidence does not show an altered gait or other signs of overcompensation. Thus, the issue is medically complex, as it requires knowledge of the interaction between joints of the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2017 VA examination. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s left knee condition is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this case, however, the record does not show any in-service left knee injury and the Veteran has not identified one. Instead, the Veteran reported an onset of left knee pain in approximately 2014 after he started to have severe left leg swelling. Absent evidence establishing that an event, injury, or disease occurred in service, an opinion on direct service connection is not necessary. See McLendon, 20 Vet. App. 79, 81-82. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for a left knee condition and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 2. An increased rating higher than 10 percent for post injury degenerative changes, right knee 3. A compensable initial rating for right knee, limitation of extension The Veteran was originally granted service connection for post injury degenerative changes, right knee, in a May 2003 rating decision. At that time, this disability was rated 10 percent effective April 16, 2002. The Veteran previous claim for an increased rating was denied in an unappealed March 2015 rating decision. The Veteran filed is current claim on August 21, 2017. In the October 2017 rating decision on appeal granted separate service connection for right knee limitation of extension. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s post injury degenerative changes, right knee is currently rated under hyphenated diagnostic code 5003-5260. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, DC 5003 provides rating criteria for degenerative arthritis and DC 5260 provides rating criteria for limitation of flexion of the knee. See 38 C.F.R. § 4.71a. Degenerative arthritis is rated under DC 5003, on the basis of limitation of motion as per the diagnostic codes for the specific joint. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating can be assigned for x-ray evidence of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating can be assigned if such involvement includes occasional incapacitating episodes. 38 C.F.R. § 4.71a, DC 5003. Note (1) under DC 5003 provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with rating based on limitation of motion. Under DC 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Additionally, DC 5261 dictates that limitation of extension of the knee to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is zero degrees of extension to 140 degrees of extension. 38 C.F.R. § 4.71a, Plate II. If the criteria for a compensable rating under both DC 5260 and DC 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (Sept. 17, 2004). Similarly, a claimant who has both arthritis and instability of the knee may be rated separately under DC 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). Knee instability is evaluated under DC 5257. 38 C.F.R. § 4.71a. A 10 percent evaluation is warranted for slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted for moderate recurrent subluxation or lateral instability. A 30 percent evaluation, which is the maximum available under this diagnostic code, is warranted for severe subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The Board notes that the terms “slight,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). VA treatment records show complaints of knee pain. In a September 2017 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ), the Veteran reported constant right knee pain, but no swelling or instability. The knee pain prevented a lot of physical activity. Range of motion testing found right knee flexion to 90 degrees with pain that did not result in or cause functional loss and extension to five degrees and left knee flexion to 70 degrees with pain that did not result in or cause functional loss and extension to five degrees. The Veteran’s passive range of motion of both knees was found to be the same as his active range of motion with the same evidence of pain. This range of motion limitation itself did not contribute to a functional loss. The September 2017 examination also found objective evidence of localized tenderness or pain on palpation of the right medial knee and left anterior knee. Additionally, there was objective evidence of pain on weight bearing bilaterally and right knee crepitus. There was no objective evidence of pain on non-weight bearing. Repetitive range of motion testing was possible and did not result in any additional loss of motion. The Veteran was not examined immediately after repetitive use over time and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repetitive use over time as Veteran was not conducted immediately following repetitive use over time. Similarly, this examination was not conducted during a flare-up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss during flare-up. The Veteran stated that his right knee pain was worse with weather changes and his left knee pain flared when his swelling was worse. Again, the examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s knee functional ability during a flare-up as the condition was not flared at the time of the examination. The additional factors contributing to the Veteran’s bilateral knee disabilities were less movement than normal, disturbance of locomotion, and interference with standing. The Veteran had decreased range of motion and pain with movement that was exacerbated by standing. Muscle strength testing found normal strength (5/5) in flexion and extension of both knees. The Veteran did not have muscle atrophy. He did not have ankylosis of either knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Objective stability testing results were all within normal limits for both knees. The Veteran did not have had shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment or any history of such impairment. Likewise, he did not have a meniscus condition or any history of one. The Veteran had not undergone any knee surgery and did not use an assistive device as a normal mode of locomotion. This disability did not result in functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. No imaging studies had been performed. The Veteran’s right knee disability impacted his ability to work in that he was unable to stand or walk for a prolonged period of time. In his December 2017 notice of disagreement, the Veteran stated that the September 2017 DBQ range of motion measurements were not taken with the aid of a goniometer. Although the Veteran argues that a goniometer was not used to obtain the reported results, the Veteran did not argue that he had less range of motion than was demonstrated at the time of the alleged deficient examination. The ranges of motion recorded in the September 2017 DBQ were consistently five to ten degrees worse than those recorded at the February 2015 DBQ provided in conjunction with his earlier claim. At that time, range of motion testing found right knee flexion to 95 degrees and full extension and left knee flexion to 80 degrees with pain that did not result in or cause functional loss and full extension. The Board notes that 38 C.F.R. § 4.46 states “[t]he use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted with the Department of Veterans Affairs.” However, although the Board finds the Veteran’s statements to be both competent and credible, without further evidence to support the deficiency of the September 2017 VA examination, the Board finds the examination sufficient. Based in the above, the Veteran’s right knee disability is characterized by pain, limitation of flexion to 90 degrees, and limitation of extension to 5 degrees. The current 10 percent rating reflects a noncompensable level of limitation of motion that is painful. See 38 C.F.R. § 4.71a, DC 5003. Although painful, at no point did his right knee’s limitation of flexion rise to a compensable level under DC 5260, meaning limitation of flexion to 45 degrees or less. See 38 C.F.R. § 4.71a. Thus, the record does not show symptoms warranting a rating higher than the current 10 percent assigned for post injury degenerative changes, right knee, based on limitation of flexion the right knee. To the extent that the right knee has been shown to have limited extension, this limitation is not 10 degrees or greater and does not warrant a separate compensable rating. See 38 C.F.R. § 4.71a, DC 5261. Thus, the record does not show symptoms warranting a compensable initial rating for right knee limitation of extension. The Board has considered the Veteran’s reports of increased right knee pain with weather changes as well as the examiner’s report that the examination was not conducted during a flare-up and the examiner could not offer an opinion as to additional functional loss during a flare up because of this fact. Under the facts of this case, the Board finds the examination report adequate and that no rating is warranted based on flare-ups. This is because his report was of increased pain but there is no report of flare-ups resulting in increased loss of motion and the rating in place currently is based on painful motion. Hence, even if his pain is greater when the weather changes, no additional rating is warranted. The Board has also considered whether a separate rating was warranted for instability of the right knee during this period. In this case, the medical evidence does not show instability. All stability testing was normal. Likewise, the record does not show recurrent subluxation. Thus, a separate compensable rating under DC 5257 is not warranted. Therefore, the Board finds that the preponderance of the evidence is against a schedular rating higher than 10 percent for post injury degenerative changes, right knee and against a compensable initial rating for right knee limitation of extension. Thus, the appeals must be denied. There is no reasonable doubt to be resolved as to either issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel