Citation Nr: 1807020 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-06 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial compensable rating for service-connected right knee arthritis with limitation of flexion. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied a rating in excess of 10 percent for the Veteran's service-connected right knee medial meniscus tear with instability condition, and granted service connection for right knee arthritis and assigned a 10 percent initial rating for limitation of extension and a separate noncompensable rating for limitation of flexion. In a December 2011 notice of disagreement, the Veteran disagreed with the initial noncompensable disability evaluation for limitation of flexion, which is the issue now before the Board. In March 2015 and April 2017, the Board remanded the Veteran's claims for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDING OF FACT The range of motion in the Veteran's right knee has not been functionally limited to 45 degrees or less of flexion. CONCLUSION OF LAW The criteria for a compensable disability rating for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010 -5260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records, have been obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran underwent VA examinations in 2011, 2015 and 2017. The VA examination reports are associated with the claims file. The Board notes that this matter was previously remanded in order to provide the Veteran with additional VA examinations. Additional examinations were provided in substantial compliance with the Board's remand instructions. The Veteran's representative asserted that the examinations were not adequate. Specifically, that the Veteran required a new examination because his right knee condition had worsened since the 2011, 2015 VA examinations and that the 2017 examination lacked expertise and rationale. The Board finds that the recent 2017 VA examination was performed by a medical professional based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examiner carefully examined the Veteran and the examination report is accurate, fully descriptive, and fully addresses the criteria necessary to effectively evaluate the Veteran's service-connected right knee disability. Moreover, the examination includes findings from range of motion studies, and repetitive motion studies, as well as strength findings, and findings from joint stability testing. In summary, it appears that the 2017 VA examination fully afforded the Veteran adequate joint testing, and that no prejudice accrues to the Veteran in relying upon this evidence. The Board finds that for these reasons, the 2017 examination is adequate for rating purposes. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). Furthermore, the Board notes that the 2011 and 2015 VA knee examinations do not indicate whether the ranges of knee motion were active or passive, and do not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The fundamental issue in Correia was that VA examinations must include adequate joint testing for pain. In this case, the 2011 and 2015 VA examination reports indicate a lack of additional limitation of motion, and/or other functional loss, following repetitive motion, except as noted. To the extent the Veteran has asserted that the 2015 examination was inadequate because it was too old and the Veteran's right knee condition had worsened, the 2011 and 2015 VA examination reports include range of motion findings for his right knee, as well repetitive motion findings consistent with the range of motion and repetitive motion 2017 VA examination findings, and the Board can find no basis to exclude these findings in its analysis. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Right Knee Disability The Veteran is seeking an initial compensable disability rating for his right knee arthritis with limitation of flexion condition. He asserts that he has a reduction in range of motion and warrants an increased evaluation. See Veteran's February 2011 VA Form 9. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5010, arthritis due to trauma is to be rated as degenerative arthritis. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved (here, Diagnostic Codes 5260 to 5263 for the knees). 38 C.F.R. § 4.71a, Diagnostic Code 5003. Here, the Veteran has a diagnosis of right knee degenerative arthritis. Under Diagnostic Code 5256, ankylosis of the knee is evaluated. The record contains no evidence of knee ankylosis, and the Veteran has not described symptoms that are suggestive of ankylosis. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Under Diagnostic Code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As discussed below, the Veteran is separately evaluated at 10 percent based on medial meniscus tear instability of the right knee under Diagnostic Code 5257. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The record contains no evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, and the Veteran has not described symptoms that are suggestive of dislocated semilunar cartilage. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Under Diagnostic Code 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Veteran has not described symptoms that are suggestive of removal of symptomatic semilunar cartilage. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Under Diagnostic Code 5260, limitation of flexion of the leg at the knee is rated at 0 percent if limited to 60 degrees, 10 percent if limited to 45 degrees, at 20 percent if limited to 30 degrees, and at 30 percent, which is the maximum evaluation available, if limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. As discussed below, the Veteran is seeking a compensable disability rating for his right knee limitation of flexion under Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the leg at the knee is rated at 0 percent if limited to 5 degrees, at 10 percent if limited to 10 degrees, 20 percent if limited to 15 degrees, at 30 percent if limited to 20 degrees, at 40 percent if limited to 30 degrees, and at 50 percent if extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. As discussed below, the Veteran has a separate 10 percent evaluation assigned for right knee arthritis with limitation of extension under diagnostic code 5261. Under Diagnostic Code 5262, impairment of the tibia and fibula is evaluated. The record contains no evidence of a current impairment of the tibia and fibula, and the Veteran has not described symptoms that are suggestive of an impairment of the tibia and fibula. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Under Diagnostic Code 5263, genu recurvatum is evaluated. The record contains no evidence of right genu recurvatum, and the Veteran has not described symptoms that are suggestive of right genu recurvatum. Therefore, this Diagnostic Code is not applicable and will be discussed no further. In addition, VA regulations provide that "pyramiding," or evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. VA has specifically found, however, that limitation of motion of the knee and instability of the knee are not duplicative or overlapping conditions, and that a claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97 (July 1997). Separate ratings must be based on additional disability. Turning to the medical evidence, a 2011 VA history record notes that the Veteran had right knee cartilage surgery in 2001 and 2002 to repair a meniscus tear. In addition, a 2011 treatment note indicates that the Veteran's knee was not giving out. The 2011 VA treatment records show reports by the Veteran of right knee pain and objective evidence of pain on range of motion testing. The Veteran was given a diagnosis of osteoarthritic changes of the right knee. No further right knee treatment or symptoms is shown in the Veteran's VA treatment records. In August 2011, the Veteran underwent a VA examination of his knee. He reported right knee pain. The examiner reported that flexion was demonstrated to110 degrees with objective evidence of painful motion beginning at 100 degrees, and which did not change after repetition. Based on right leg flexion limited to 110 degrees, and even with consideration of objective evidence of painful motion beginning at 100 degrees, the Veteran's flexion under DC 5260 was not limited enough to warrant a compensable rating at the time of the August 2011 examination. An April 2015 VA examination reports that the Veteran demonstrated right knee flexion to 105 degrees. Pain was noted on examination to cause functional loss. No evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing without additional functional loss or range of motion. No flare ups were noted during examination. Based on right leg flexion limited to 105 degrees, the Veteran's flexion under DC 5260 was not limited enough to warrant a compensable rating at the time of the August 2015 examination. The Veteran underwent a June 2017 VA examination. The Veteran reported swelling, intermittent right knee flare ups of pain when sitting, standing, walking running, doing squats and kneeling. The examination showed the following range of motion measurements: flexion from 5 to 105 degrees and extension from 105 to 5 degrees. The examiner noted that although the Veteran's range of motion was outside the normal range, it was normal for him because he had very muscular thighs and calves bilaterally that limited his flexion by 10 degrees on each side. The examiner also reported that the Veteran's functional impairment resulted in less movement than normal, swelling, disturbance of locomotion, interference with sitting, interference with standing, and pain on movement. No ankylosis or instability was shown on examination. Based on limitation of flexion of 105 degrees, the current objective examination results support a noncompensable disability percent evaluation for the Veteran's right knee degenerative arthritis under Diagnostic Code 5260. Upon review of the evidence of record, the Board finds that the weight of the evidence is against the finding that manifestations of right knee arthritis with limitation of flexion more closely approximate the criteria for a higher rating under Diagnostic Code 5260. For the entire rating period on appeal, flexion ranged from 100 to 105 degrees, including after consideration of functional loss due to pain. At no point has the Veteran been found to have limitation of flexion of the knee to 45 degrees, as required for a10 percent rating under Diagnostic Code 5260. Therefore, the Board finds that the Veteran's noncompensable disability rating for the entire period on appeal is warranted. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, increased ratings for the right knee disorder is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms were supported by pathology consistent with the noncompensable disability rating assigned for the entire appeal period. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Specifically, even when considering the effect of the Veteran's pain and other functional loss, he still demonstrated range of motion following repetitive use of flexion to well in excess of the degree required for a higher rating. Regarding the Veteran's painful motion, the Board observes that his complaints of pain and limitations due to pain, and reports thereof, are contemplated in the separate 10 percent evaluation assigned for right knee arthritis with limitation of extension presently assigned under Diagnostic Code 5261. See November 2011 rating decision. As noted in the Introduction, the Veteran is separately rated and assigned a 10 percent disability rating, each, for right knee arthritis with limitation of extension and right knee medical meniscus tear with instability. The Veteran did not disagree with these evaluations; therefore, they are not on appeal and need not be addressed further. See December 2011 notice of disagreement. In conclusion, while the Veteran's contentions have been respectfully considered, a higher evaluation is not warranted based on the evidence of record. As the weight of the evidence is against the Veteran's claim for a compensable disability rating for right knee limitation of flexion. Accordingly, the reasonable doubt doctrine is not for application and the claim must be denied. ORDER An initial compensable rating for service-connected right knee arthritis with limitation of flexion is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs