Citation Nr: 18157328 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-40 215 DATE: December 12, 2018 ORDER A disability rating in excess of 10 percent for right knee sprain, with iliotibial band syndrome and degenerative arthritis, is denied. A disability rating in excess of 10 percent for left knee sprain is denied. REMANDED Entitlement to a total rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran’s right knee sprain is productive primarily of painful motion and extension, iliotibial band syndrome and degenerative arthritis, but with normal knee range of motion, no ankylosis, no recurrent subluxation or lateral instability, no semilunar or dislocated cartilage, locking or effusion, and no impairment of the tibia or fibula. 2. The Veteran’s left knee sprain is productive primarily of painful motion, but with normal range of motion, no ankylosis, no recurrent subluxation or lateral instability, no semilunar or dislocated cartilage, locking or effusion, and no impairment of the tibia or fibula. CONCLUSIONS OF LAW 1. For the entirety of the appellate period, the criteria for a disability rating in excess of 10 percent for right knee sprain with iliotibial band syndrome and degenerative arthritis, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.71a, Diagnostic Codes (DC) 5003-5260 (2017). 2. For the entirety of the appellate period, the criteria for a disability rating in excess of 10 percent for left knee sprain are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.71a, DC 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1994 to January 1998. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Preliminary Matter 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to a disability rating in excess of 10 percent for right knee sprain, with iliotibial band syndrome and degenerative arthritis. 2. Entitlement to a disability rating in excess of 10 percent for left knee sprain. Although the RO identified and adjudicated each issue separately, the Board will address the issues together as they stem from essentially the same facts and law. In a March 2017 rating decision, the Veteran’s right knee disability (initially assigned a 10 percent rating under Diagnostic Codes (DC) 5024-5260 when service connection was granted in 1998) was reevaluated under DCs 5003-5260 to account for a January 2017 VA examiner’s diagnosis of right knee sprain with iliotibial band syndrome and degenerative joint disease, and the rating was continued at 10 percent; The rating for the left knee disability was continued at 10 percent under DC 5260. See Rating Decision dated March 3, 2017 at pg. 2. Hyphenated codes are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. The additional DC is shown after a hyphen. 38 C.F.R. § 4.27. DC 5003 sets forth the rating criteria for degenerative arthritis. This is appropriate for the Veteran’s right knee as the record reflects a diagnosis of degenerative arthritis of the right knee. However, as the record does not establish that the Veteran’s right knee is limited in motion at any time during the period on appeal, a separate evaluation for arthritis is not warranted. See VA General Counsel held in VAOPGCPREC 23-97. In regard to the criteria for rating knee disabilities, DC 5260 provides for the evaluation of limitation of flexion of the knee. 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. Id. Under DC 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. DC 5256 provides for ratings from 30 to 60 percent for ankylosis of the knee. 38 C.F.R. § 4.71a. DC 5257 provides ratings of 20 and 30 percent for recurrent subluxation or lateral instability of the knee which is moderate or severe, respectively. 38 C.F.R. § 4.71a. DC 5258 provides for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. DC 5262, malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating, and with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion, requiring a brace warrants a 40 percent rating. 38 C.F.R. § 4.71a. Descriptive words such as “slight,” “moderate” and “marked” 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. Normal range of motion (ROM) of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Analysis Turning to the evidence, a VA treatment record dated December 2016 reflects that the Veteran reported bilateral knee pain. The Veteran underwent a VA examination in January 2017. He reported that his knee disabilities had grown worse, including constant pain, which was worse when running or standing for long periods of time, which causes his knees to swell and become weak. He endorsed regular use of a knee brace. The Veteran reported flare-ups of the right knee only, which he described as pain, limping swelling, and weakness. He denied flare-ups of the left knee. He described functional loss as being unable to stand for long periods of time, needing to sit down once the pain becomes severe, and he is unable to take pain medication when working. ROM testing of the Veteran’s knees was normal, with flexion to 140 degrees, and extension to 0 degrees, bilaterally. There was objective evidence of painful motion during right knee flexion and extension, but it was noted that the pain did not result in functional loss. There was no pain noted during ROM testing of the left knee. The Veteran was able to perform repetitive use testing with three repetitions, bilaterally, with no reduction in ROM or functional loss in either knee after three repetitions. The examiner noted that she could not say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability of the Veteran’s right knee during flare-ups or with repeated use over a period of time because the Veteran was not being examined during a flare-up or following repeated use of the joint over time. The examiner did note, however, that the Veteran reported that repetitive use over time would result in swelling and reduced ROM. There was mild tenderness on palpation of the medial and lateral right knee joint, and there was evidence of right knee pain on weight-bearing. There was no tenderness of the left knee, and no evidence of crepitus, bilaterally. Muscle strength testing was normal, bilaterally. The Veteran was negative, bilaterally, for muscle atrophy, ankylosis, recurrent subluxation, and lateral instability. The Veteran was negative for joint instability (anterior, posterior, medial, and lateral), bilaterally. He was negative for recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome, and other tibial or fibular impairment of either knee. The Veteran was negative for meniscal conditions and surgery, bilaterally. Imaging studies revealed degenerative arthritis of the right knee. The examiner concluded that the Veteran’s knee disabilities prevent performance of occupational tasks, specifically those he engaged in while serving as a police officer, i.e. wearing 40 pounds of gear, prolonged standing, running (such as during pursuits of suspects), or assisting emergency medical personnel carry patients down stairways. The examiner noted that the Veteran was currently medically retired from the police force due, in part, to his knee disabilities. The VA examiner diagnosed right knee sprain with iliotibial band syndrome, degenerative arthritis of the right knee, and left knee sprain. The examiner noted that the Veteran’s right knee diagnosis is a progression from an earlier diagnosis of degenerative joint disease. Additionally, the examiner noted that the Veteran’s left knee was asymptomatic during the examination. During a VA peripheral nerves examination in August 2017, the Veteran denied using assistive devices. Muscle strength testing of knee extension was 4/5, bilaterally, and deep tendon reflexes at the knee were normal, bilaterally. During light touch testing, there was decreased sensation at the thigh/knee. For the period on appeal, the Board finds that a rating higher than 10 percent for either knee disability is not warranted. A higher rating is not warranted under DC 5260 or 5261 as neither knee disability is manifested by flexion limited to 30 degrees, or extension limited to 15 degrees, respectively. In fact, the Veteran has not met the criteria for even a noncompensable rating under the limitation of motion DCs at any time during the appellate period as the treatment records and the VA examination show that he has had full ROM of both knees during this period. Thus, even considering any functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59, see DeLuca, supra., a disability rating in excess of 10 percent is not warranted for either knee from December 7, 2016 when the claim period commenced. See Claim for compensation received December 1, 2016 (VA Form 21-526EZ). The January 2017 VA examiner was unable to indicate whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time or during a flare-up. However, the examination report explained why a speculative determination was made. Specifically, while acknowledging the Veteran’s subjective report of right knee swelling and reduced motion, the examiner stated that he had never seen the Veteran before, inferring that she has not had the opportunity to observe the Veteran’s right knee motion over repeated use or during a flare-up; thus, any determination in that regard would be a speculative one. At any rate, the record does not otherwise show that the Veteran’s reported swelling and reduced ROM over repeated use or during a flareup is so significant as to meet or approximate the criteria for the next-higher rating; i.e., 30 degrees flexion and 15 degrees extension. Again, the Veteran had normal range of motion (0-140 degrees) on examination and therefore does not meet even the noncompensable rating under the limitation of motion codes. The current 10 percent ratings were assigned for painful, yet noncompensable limitation of motion. Moreover, there was no reduction in ROM when the Veteran performed repetitive-use testing with three repetitions at the examination. There was also no evidence of a reduction of muscle strength and no evidence of muscle atrophy. Based on the record as a whole, the Board concludes that the current 10 percent ratings adequately compensate the Veteran for his knee disabilities and their associated functional impairment. The preponderance of the evidence is against finding that the Veteran’s right and left knee disabilities meet or more nearly approximate the criteria for a 20 percent rating under DCs 5260 or 5261. The Board also considered whether ratings in excess of 10 percent are warranted under other potentially applicable diagnostic codes. DC 5257 is not for application as there is no evidence of recurrent subluxation or lateral instability of either knee. Joint stability test was normal for each knee. Likewise, as the Veteran is negative for ankylosis of the knee, dislocated semilunar cartilage, locking, and effusion, and malunion of the tibia and fibula, higher ratings are not warranted under DCs 5256, 5258, or 5262. The Board acknowledges the Veteran’s remarks in his May 2017 Notice of Disagreement, in which he points out that the March 2017 rating decision incorrectly stated that he received an injection in his left knee in December 2016, and that his left knee was asymptomatic, and questions whether the correct treatment records were reviewed. He also asserts that his doctor told him he has iliotibial band syndrome in his left knee, not his right knee, and that his right knee disability involves meniscus and patella misalignment. He also suggests that a new VA examination is needed for these reasons, but the Board finds his assertions without merit. First, a review of the December 2016 treatment record reveals that the Veteran complained of low back pain, as well as bilateral knee pain, and suggests that the Veteran received an injection for back pain, although the VA nurse who authored the narrative did not specify the injection site. See VA treatment note dated December 27, 2016. Second, a review of the claims file shows that the treatment records on file are for the Veteran dated to January 2018. Third, while the January 2017 VA examiner noted that there was no pain during ROM testing of the Veteran’s left knee, the Veteran’s report of pain in both knees was noted by the examiner. Third, the Veteran’s service treatment records reflect a diagnosis of right iliotibial band syndrome, upon which the 1998 grant of service connection for the right knee is based; the post-service medical records do not reflect a diagnosis of iliotibial band syndrome of the left knee, and although the Veteran indicates that his doctor told him he has iliotibial syndrome of the left knee, not the right, this is not supported by any of the objective medical evidence of record, and the Veteran has not identified any outstanding medical treatment records that support this contention. Lastly, although the Veteran’s treatment records prior to the period on appeal reference MRI findings indicating mild degenerative transverse signal in the right knee medial meniscus, and that patellar maltracking is possible, see VA treatment record dated April 15, 2015, these findings do not contradict the relevant medical evidence of record for the period on appeal that reflect a diagnosis of right knee sprain with iliotibial band syndrome and degenerative arthritis. Additionally, subsequent joint stability testing on VA examination was negative. As such, the Board finds that a new examination is unwarranted at this time. In summary, the Board finds that the weight of the evidence is against increased ratings for the Veteran’s right and left knee disabilities for the entire appeal period. REASONS FOR REMAND The Board finds that the issue of unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The January 2017 VA knee examination report indicates that the Veteran is currently being medically retired from the police force due to his service connected knee disability(ies), as well as his back disability and PTSD. The Veteran filed for VA Vocational Rehabilitation services and it was noted that the Veteran’s last day of employment was in February 2017. In light of the Court’s holding in Rice and the evidence of record, the Board infers a TDIU claim as part of his increased rating claims on appeal. The matter is REMANDED for the following action: Provide the Veteran appropriate notice in connection with the inferred claim for TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940), and the RO should undertake all further appropriate actions for development of this claim. (Continued on the next page)   Then, regardless of whether the Veteran returns the completed application, adjudicate the derivative TDIU claim and return it to the Board if in order. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel