Citation Nr: 18158560 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 14-15 605 DATE: December 17, 2018 ORDER An increased disability rating in excess of 10 percent for degenerative joint disease of the left knee is denied. An increased disability rating in excess of 10 percent for subluxation of the left knee is denied. A separate, increased disability rating of 10 percent, but no higher, for a painful scar or the left knee, effective September 9, 2016, is granted subject to the regulations and governing criteria applicable for payment of monetary benefits. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s degenerative joint disease of the left knee was manifested by, in pertinent part, non-compensable limitation of motion. 2. Throughout the majority of the appeal period, the Veteran’s subluxation of the left knee was manifested by patellofemoral tracking. 3. During a September 9, 2016 VA examination, the Veteran demonstrated tenderness of a scar at the inferio-lateral aspect of the left knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased disability rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003, 5010 (2017). 2. The criteria for entitlement to an increased disability rating in excess of 10 percent for subluxation of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.40, 4.45, 4.71a, DC 5257 (2017). 3. The criteria for entitlement to a separate, increased disability rating of 10 percent, but no higher, effective September 9, 2016, for a painful scar of the left knee have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.118, DC 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2006 to December 2010. 1. The issues of entitlement to an increased disability rating in excess of 10 percent for degenerative joint disease of the left knee; and an increased disability rating in excess of 10 percent for subluxation of the left knee. The Veteran contends that he is entitled to an initial disability rating in excess of 10 percent for degenerative joint disease of the left knee. See April 2014 VA Form 9. He also asserts that he is entitled to an initial disability rating in excess of 10 percent for subluxation of the left knee. Id. During a September 2016 Board videoconference hearing, the Veteran testified that his knee gave out while walking. September 2016 Board Hearing Transcript at 3. In fact, it gave out on him three days prior, causing him to stop in his tracks and bend over. Id. 14. He also relayed experiencing swelling, constant crackling, intermittent popping and locking. Id. at 3-4. His knee has been giving out more frequently, it gives out a couple of times per week. Id. at 8. Sometimes, it gives out a couple of times per day. His knee locked up a couple of times per week as well. He reported that pain onset with walking about 300 yards. Id. at 4. He was unable to sit or stand up for prolonged periods because it caused discomfort. Id. at 5. If he traveled for a long time, he had to take breaks to stand and stretch his legs. Id. at 3. If he rode a bicycle, he was only able to ride about 15 minutes at a time, if that. Id. at 6. He wore a knee brace and kept a cane nearby for the occasions that his knee gives out, but he does not use it too often. Id. at 5-6. Nevertheless, he admitted that he has not received any treatment for his knee in the past year. Id. at 5. Preliminarily, the Board notes the applicable DCs are 5010 for degenerative arthritis due to trauma and 5257 for impairment of the knee due to recurrent subluxation or lateral instability. DC 5010 is rated under the diagnostic criteria prescribed under DC 5003 for degenerative arthritis. Pursuant to the diagnostic criteria under DC 5003, a 10 percent disability rating is warranted if limitation of motion of the joint or joints involved is non-compensable under the appropriate diagnostic code(s) and there is objective confirmation of the limitation of motion by such findings as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, DC 5003 sets forth that a 10 percent disability rating is warranted if there is x-ray evidence showing involvement of two or more major joints or two or more minor joint groups; and a 20 percent disability rating is warranted if there is x-ray evidence showing involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Under DC 5257, a 10 percent disability rating is warranted if the impairment is slight; a 20 percent disability rating is warranted if the impairment is moderate; and a 30 percent disability rating is warranted if the impairment is severe. The words “slight,” “moderate,” and “severe” are not defined in the VA’s Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.71a, DC 5257. As such, rather than applying a mechanical formula, the Board must evaluate all of the evidence for an “equitable and just decision.” 38 C.F.R. § 4.6. Further, when evaluating musculoskeletal disabilities such as spinal disabilities, 38 C.F.R. § 4.40 recognizes the primary concern is the inability to perform the normal working movements of the body with normal excursion, strength, speed coordination, or endurance. Thus, when evaluating musculoskeletal disabilities on the basis of limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors that may not be reflected upon ROM testing during flare-ups or with repeated use over time. In that regard, the VA must also consider factors such as: more or less movement than normal; weakened movement; excess fatigability; incoordination; and pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing are related considerations as well. 38 C.F.R. § 4.45. Nevertheless, even when such factors are present, a separate or higher disability rating is not appropriate based on those factors alone. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Rather, the disability rating assigned is based on the extent to which motion is limited as a result of these factors. A review of the Veteran’s service treatment records (STRs) discloses that he sought medical attention for his left knee on numerous occasions. Generally, his STRs showed he experienced effusion, swelling, patellar crepitus, tenderness on palpation to multiple regions of the left knee, patellofemoral tracking, muscle weakness and pain with motion. Nevertheless, his STRs in 2007 indicated he retained full ROM. January 2007 Chronological Record of Medical Care; February 2007 Chronological Record of Medical Care. He continued to demonstrate full ROM into August 2008. August 2008 Chronological Record of Medical Care. Beginning in December 2008, the Veteran’s STRs contain conflicting information regarding whether he demonstrated abnormal or normal movement. While his STRs continued to indicate there was pain elicited with motion, none contained specific ROM measurements. His STRs from 2009 also contain the same conflicting information. For instance, a May 2009 Chronological Record of Medical Care documented full ROM, but also simultaneously found decreased mobility, abnormal motion, decreased active ROM and decreased passive ROM. Thus, it is unclear whether he actually exhibited any limitation of motion, if so to what degree, as a result of the symptoms associated with his left knee. As such, with respect to the issue of limitation of motion, his STRs from 2008 and 2009 have no probative value. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Following the Veteran’s separation from service, a review of his VA treatment records reveals that he continued to complaint of pain and swelling in the left knee in 2011. In particular, a September 2011 VA Primary Care Physician Note documented his report of swelling over the past month, occasional pain behind the knee as well as occasional giving out and stiffness. Despite his complaint, the VA treatment provide found no evidence of swelling upon examination. Of note, the VA treatment provider noted his ROM was within normal limits. However, he did demonstrate crepitus with motion. Just a month later, an October 2011 VA Physical Therapy Consult recorded the Veteran’s continued complaint of pain, stiffness and swelling in the left knee. He rated his pain at six out of 10 on the pain scale, with 10 being the most severe. These symptoms were worse with weight-bearing and going up and down stairs. He relayed that his left knee gave out a month ago while walking. He experienced popping, catching, locking and grating in his knee. He also reported numbness in his feet after about 30 minutes of exercising. Cf. August 2012 Rating Decision (denying service connection for bilateral numbness of the feet). He continued to wear a knee brace. Upon examination, the VA treatment provider found his muscle strength was reduced, scoring a four in all respects, indicating active movement against some resistance, but there was no evidence of muscle atrophy. Id.; see also September 2016 Knee and Lower Leg Conditions VA Examination Report (noting muscle strength was score from 0/5, indicating no muscle movement, to 5/5, indicating normal strength). There was also evidence of moderate tenderness laterally and in the popliteal fossa, a small pocket of swelling laterally and decreased weight-bearing in the left lower extremity. October 2011 VA Physical Therapy Consult. Nonetheless, his ROM was within normal limits with both flexion and extension. The Veteran’s VA treatment notes from 2012 are limited, but they disclose that he continued to report knee pain, popping, locking, grating and giving way. Physical examinations revealed patellar tracking, but he was ligamentously stable otherwise. He continued to exhibit crepitus. Even still, his retained full ROM. Notably, by December 2012, his muscle strength was found to be normal in all respects. December 2012 VA Kinesiotherapy Consult. A VA treatment note from February 2013 shows the Veteran continued to demonstrate patellar tracking upon examination, but there was no evidence of instability following a ligamentous examination. February 2013 VA Orthopedic Surgery Inpatient Note. He also exhibited pain with compression of the patella into the groove through passive ROM. However, there was no evidence of tenderness to palpation. He continued to demonstrate crepitus. Even so, he had good ROM. The Veteran continued to complain of left knee pain into 2014. He generally described this pain as shooting, throbbing and sore, which increased with pressure and bending. May 2014 VA Preventative Medicine Nursing Note. He underwent a left knee arthroscopy and chondroplasty in August 2014. August 2014 VA Surgery Outpatient Note. Immediately following these procedures, his ROM was decreased. August 2014 VA Orthopedic Surgery Outpatient Note; September 2014 VA Orthopedic Surgery Outpatient Note. While he was able to achieve extension of zero degrees, he was only able to achieve flexion of 110 degrees. Although he initially had moderate effusion in the knee in August 2014 following the procedures, by September 2014 no effusion was noted. The Veteran reported falling once in 2014. October 2014 VA Emergency Department Evaluation and Management Note. However, it was because he tripped over his dog and fell on his left knee. There is a dearth of VA treatment records from 2015. The available VA treatment records disclose the Veteran continued to report pain in his left knee, which was worse following a busy day of walking or standing. He relayed having difficulty with sitting with the knee flexed for any amount of time. Notably, a January 2015 VA Orthopedic Surgery Outpatient Note indicated there was mild patellofemoral crepitus with passive ROM and mild medial joint line tenderness upon examination. He was able to achieve flexion of 120 degrees and extension of zero degrees. There was no evidence of instability and his muscle strength was normal in all respects. Consistent with the Veteran’s testimony during the September 2016 Board videoconference hearing, there are no VA treatment records from 2016 of record. However, he submitted a January 2016 Knee and Lower Leg Conditions Disability Benefits Questionnaire completed by Dr. M.U.B. During this examination, he stated that he has been experiencing pain over the past seven years. He suffered pain with ambulation and prolonged sitting. He has received steroid injections in his left knee in the past and has undergone two arthroscopies as well. Dr. M.U.B. did not indicate whether he described suffering from any flare-up episodes. ROM testing revealed the Veteran was able to demonstrate flexion of 140 degrees and extension of zero degrees. While there was no evidence of pain with any movement, there was evidence of pain with weight-bearing and non-weight bearing. It appears Dr. M.U.B. did not conduct repetitive use testing and no explanation was provided for the lack thereof. Other than ROM, Dr. M.U.B. found evidence of tenderness at the patellar facet and with patellar compression medially and laterally. His muscle strength was normal, without evidence of muscle atrophy. There was no evidence of ankylosis. Dr. M.U.B. determined there was no history of recurrent subluxation or lateral instability. However, there was a history of mild to moderate recurrent effusion. Dr. M.U.B. also noted he previously had a meniscal tear, but it was asymptomatic at the time of examination. Further, there were portal incisions at the left anterior knee measuring one centimeter by one to two centimeters, which were neither painful or unstable. Given the findings, Dr. M.U.B. determined that pain on movement, swelling, pain with deep squats and inclines were additional contributing factors to the Veteran’s left knee disability. In the end, Dr. M.U.B. concluded while pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups or with repetitive use over time. Additionally, Dr. M.U.B. stated he may experience decreased strength and fatigability due to pain as well. However, Dr. M.U.B. stated it was not feasible to express in terms of degrees the resulting limitation of motion due to these symptoms. In doing so, Dr. M.U.B. failed to provide a reason as to why such an estimate was not feasible. However, Dr. M.U.B. indicated that in terms of functional impact on his ability to work, he would be limited in his ability to climb steps and stairs, kneeling, squatting, heavy lifting, pull and push. The Veteran has been afforded three VA examinations with respect to this claim; first in July 2011, then in February 2013 and September 2016. July 2011 General Medical VA Examination Report; February 2013 Knee and Lower Leg Conditions VA Examination Report; September 9, 2016 Knee and Lower Leg Conditions VA Examination Report. The Board notes the July 2011 and February 2013 examinations were conducted prior to the decision in Correia v. McDonald. Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the Board must review the July 2011 General Medical VA Examination Report and February 2013 Knee and Lower Leg Conditions VA Examination Report for compliance with the Correia mandates. Upon review, the Board finds the July 2011 General Medical VA Examination Report and February 2013 Knee and Lower Leg Conditions VA Examination Report are not fully compliant with Correia. Specifically, the July 2011 and February 2013 VA examiners did not proffer an opinion bearing on the limitation of motion or function during flare-ups or with repeated use over time. Cf. Correia, 28 Vet. App. at 170; cf. also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); DeLuca, supra. Thus, the July 2011 General Medical VA Examination Report and February 2013 Knee and Lower Leg Conditions VA Examination Report are inadequate for evaluation purposes. During the September 2016 VA examination, the Veteran reported suffering from more frequent pain in his left knee. He described the pain as sharp and throbbing. September 9, 2016 Knee and Lower Leg Conditions VA Examination Report. He rated the pain an eight out of 10. He treatment his pain with over the counter pain medication. He stated the pain was aggravated by sitting for more than 15 to 20 minutes, standing for more than five to 10 minutes and walking for more than 20 to 25 minutes. Further, he was unable to run, squat, lift more than 15 to 20 pounds, sit with his legs crossed or with his knee in flexion, or perform household chores. However, he denied any limitation with his daily living activities. In terms of flare-up episodes, he reported they occurred daily. They lasted for five minutes at a time and consisted of increased pain that stopped him in his tracks, which he rated between nine and 10 out of 10. Following ROM testing, the Veteran was able to demonstrate flexion of 130 degrees (normal being to 140 degrees) and extension of zero degrees (normal being to 30 degrees). However, the VA examiner qualified the findings by stating his ROM was normal given his age and body habitus. Further, the VA examiner found his ROM did not contribute to functional loss. Significantly, there was no objective evidence of pain noted during the examination whatsoever. Even after repetitive use testing, there was no additional limitation of motion or function. Aside from ROM, the VA examiner found evidence of tenderness on palpation and crepitus. His muscle strength was normal in all respects, without any evidence of muscle atrophy. There was no evidence of ankylosis. There was no history of recurrent subluxation or lateral instability, and joint stability testing was negative. However, there was evidence of a history of recurrent effusion. The VA examiner also noted he had a healed, but tender scar due to surgery related to the service-connected disability at the inferio-lateral aspect of the left knee, which measured one centimeter by one centimeter. Further, the examiner noted he relied on the regular use of brace and occasional use of cane due to his left knee. Based on the findings, the VA examiner concluded that additional contributing factors to the Veteran’s left knee disability were disturbance of locomotion, interference with sitting and interference with standing. In the end, the VA examiner opined the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. While pain, fatigue, weakness, lack of endurance and incoordination would significantly limit functional ability during a flare-up and with repetitive use over time, the VA examiner was unable to describe it in terms of ROM because the examination was conducted neither during a flare-up episode or immediately following repetitive use over time. Given the examination revealed no additional limitation of motion or function with repetitive use testing and there are no other medical records assessing the Veteran’s left knee during a flare-up or with repetitive use over time, the Board finds the September 9, 2016 Knee and Lower Leg Conditions VA Examination Report is adequate for evaluation purposes because there was no other reasonably procurable data available for the VA examiner to consider and weigh. See Jones v. Shinseki, 23 Vet. App. 382, 291 (2010); cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board acknowledges that during the September 2016 Board videoconference hearing, the Veteran testified that his left knee disabilities have worsened since he was last examined. September 2016 Board Hearing Transcript at 3. However, the Board notes the hearing was conducted just six days following the September 2016 VA examination. A review of his testimony suggests the increase in the symptoms occurred prior to the September 2016 VA examination. Therefore, the Board finds a remand for another VA examination is unnecessary. Cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In contemplating the above, the Board finds the preponderance of the evidence does not support an increased disability in excess of 10 percent for degenerative joint disease of the left knee at any time during the pendency of the appeal. Cf. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5010 (2017); cf. also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Notwithstanding the various symptoms associated with the Veteran’s left knee, throughout the appeal period, he demonstrated non-compensable limitation of motion, which was confirmed by objective evidence, to include swelling and satisfactory evidence of painful motion. At all times, he retained full extension. At worst, his flexion was limited to 110 degrees in August 2014 following an arthroscopy and chondroplasty, which is 50 degrees more than the minimum 60 degrees required to warrant a 10 percent disability rating under DC 5260 for limitation of flexion. Further, an x-ray examination cannot establish involvement of two or more major joints or two or more minor joint groups, as the knee itself is considered as one major joint group pursuant to 38 C.F.R. § 4.45. Therefore, a 10 percent disability rating on the basis of x-ray evidence cannot be substantiated, much less a higher 20 percent disability rating. Further, in contemplating the above, the Board finds the evidence does not support an increased disability in excess of 10 percent for subluxation of the left knee at any time during the pendency of the appeal. There is no evidence of joint instability, to include lateral instability, at any time during the appeal period. Although the treatment records above note the presence of patellofemoral tracking (subluxation) in service and into February 2013, they provide no further information bearing on the severity thereof. Thus, a disability rating in excess of 10 percent cannot be justified. Further, there is no evidence of record showing his patellofemoral tracking continued after February 2013. Even so, the Board declines to reduce the disability rating presently assigned. The Board’s inquiry does not end here. The Board must also consider increased evaluations under other potentially applicable DCs. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); cf. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Other DCs pertaining to the knee are DCs 5256 for ankylosis, 5258 for dislocation of the semilunar cartilage (meniscus) with frequent episodes of locking, pain and effusion into the joint, 5259 for symptomatic removal of the semilunar cartilage, 5260 for limitation of flexion, 5261 for limitation of extension, 5262 for impairment of the tibia and fibula and 5263 for genu recurvatum. As there is no evidence of record demonstrating ankylosis, removal of the semilunar cartilage, limitation of extension, impairment of the tibia and fibula or genu recurvatum, separate disability ratings under DCs 5256, 5259, 5261, 5262 or 5263 are impermissible. Despite the Veteran’s complaint of increasing episodes of locking and pain, Dr. M.U.B. explicitly indicated that his prior meniscal tear was asymptomatic. There is no other evidence of record associating his complaints of locking, pain or effusion with any meniscal condition. Consequently, a separate increased disability rating under DC 5258 for dislocation of the semilunar cartilage with frequent episodes of locking, pain and effusion into the joint is not warranted. As referenced above, under DC 5260 for limitation of flexion, to warrant the minimum compensable disability rating flexion was must limited to at least 60 degrees. Again, at worst, the Veteran’s flexion was limited to 110 degrees, which is 50 more degrees than the minimum required for a compensable disability rating under DC 5260. As such, a separate, increased disability rating under DC 5260 cannot be substantiated. The only other related symptom raised by the record is a healed, but tender scar at the inferio-lateral aspect of the left knee. This was first noted during the September 2016 VA examination. Under DC 7804 for unstable or painful scars, a 10 percent disability rating is warranted if there are one or two unstable or painful scars; a 20 percent disability rating is warranted if there are three or four unstable or painful scars; and a 30 percent disability rating is warranted if there are five or more unstable or painful scars. Note 1 associated with DC 7804 defines an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Here, while other scars associated with the left knee have been previously acknowledged, the evidence of record establishes the presence of only one painful scar. See March 2012 Rating Decision (granting service connection for subluxation of the left knee with a residual scar, effective December 26, 2010); September 2016 Rating Decision Codesheet (noting a separate non-compensable disability rating for post-operative scars of the left knee effective December 26, 2010). Thus, a separate, increased disability rating of 10 percent, but no higher, is warranted under DC 7804, effective September 9, 2016, the date of the September 2016 VA Examination. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel