Citation Nr: 18106934 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 05-18 196 DATE: June 1, 2018 ORDER 1. A rating in excess of 10 percent for the right knee based on instability is denied. 2. A separate 20 percent rating, but not higher, for the right knee based on locking is granted. 3. A separate 30 percent rating, but not higher, for the right knee based on limitation of flexion is granted. 4. A separate 10 percent rating, but not higher, for the right knee based on limitation of extension is granted. 5. Entitlement to special monthly compensation (SMC) at the housebound rate. FINDINGS OF FACT 1. Throughout the appeal period the Veteran’s right knee disability has been productive of pain, locking, crepitus, no more than slight instability, limitation of flexion to 30 degrees, with limitation of extension to 10 degrees. 2. Since January 25, 2012, the Veteran’s service-connected bipolar disorder has been rated 100 percent disabling and has other service-connected disabilities independently rated as 60 percent disabling. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the right knee based on instability have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5257 (2017). 2. The criteria for a separate 20 percent rating, but not higher, for the right knee based on locking have been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5258 (2017). 3. The criteria for a separate 30 percent rating, but not higher, for the right knee based on limitation of flexion have been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5260 (2017). 4. The criteria for a separate 10 percent rating, but not higher, for the right knee based on limitation of extension have been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5261 (2017). 5. The criteria for SMC based on statutory housebound status from January 25, 2012, to present, are met. 38 U.S.C. §§ 1114(s), 5107 (202); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1998 to April 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated July 2004, October 2007, and January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board remanded the matter for further development in April 2008, June 2011, December 2016, and November 2017. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in August 2016. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (20177). 38 U.S.C. § 7107(a)(2) (2012). The Veteran seeks a rating in excess of 10 percent for his right knee disability, which is currently rated on the basis of instability under Diagnostic Code 5257. Throughout the appeal the Veteran has complained of constant pain, limitation of motion, stiffness, giving way, popping, crepitus, clicking, and locking. With regard to functional loss, he reported that his knee disability impacts his activities of daily living as it limits his ability to sit, stand from a seated position, and bear weight and ambulate; and giving way has caused him to fall. See, e.g., Statements from the Veteran and his representative (November 2017). The Veteran denied flare-ups on VA examination in November 2007, March 2016, May 2017, and January 2018, but, in May 2017, he reported that pain and resultant limitation of motion affects ambulation on bad days. Indeed, all VA examiners noted that the Veteran’s knee pain limits his range of motion, thereby affecting ambulation. As to functional loss, the November 2007 VA examiner also noted meniscal abnormality and that knee pain and limitation of motion result in decreased mobility, problems with lifting and carrying, lack of stamina, decreased strength, and pain. The Board finds that a separate 20 percent rating under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of locking, clicking, and crepitus is warranted throughout the appeal period. The Board finds that a separate 30 percent rating under Diagnostic Code 5260 is warranted throughout the appeal period for limitation of flexion to 30 degrees coupled with flare ups that severely impair use. The Board further finds that a separate10 percent rating under Diagnostic Code 5261 for limitation of extension to 10 degrees is warranted. The Board also finds that a rating in excess of 10 percent for right knee instability is not warranted. As a result of the ratings granted herein, the Veteran is in receipt of a combined 60 percent rating for the right knee, which is the highest schedular rating for the knee. See 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Code 5263 (2017). Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. 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. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). There the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this case, the Board finds that although the Veteran complained of increased pain and limitation of motion, his symptoms have been relatively stable throughout the appeal period. As such, staged ratings are not warranted. 1. Instability The Board finds that a rating in excess of 10 percent for instability is not warranted at any time during the pendency of the appeal. Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms “mild,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. The evidence demonstrates that the Veteran’s symptoms have more nearly approximated “slight” rather than “moderate” or “severe” recurrent subluxation or lateral instability throughout the appeal period. The Veteran has complained of giving way in his knee throughout the appeal period. Nevertheless, the November 2007 VA examiner, March 2016, May 2017, and January 2018 VA examiners reported that stability tests showed that the Veteran does not suffer instability or subluxation on physical examination. The Board notes the Veteran is competent to give testimony concerning his symptoms, and finds his statements concerning the knee instability or giving way he observed to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). However, for the purposes of determining the severity of his right knee instability, the Board finds that the normal joint stability tests and lack of objective evidence weighs in favor of a rating for “slight” rather than “moderate” or “severe” instability or subluxation. Furthermore, as there is no evidence of frequent episodes of giving way or falling as a result of knee instability, the Board does not find that the Veteran’s disability picture has more nearly approximated “moderate” or “severe” recurrent subluxation or lateral instability at any point during the appeal period. 2. Locking The Board further finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 for right knee popping, grinding, catching, and locking the Veteran experiences. According to the Rating Schedule, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The Board notes that the November 2007 VA examiner noted meniscal abnormality with crepitus and clicking. More recently, the Veteran’s representative reported to have witnessed the Veteran’s knee lock and cause him to fall back into his chair as he attempted to rise from a seated position; the Veteran has reported such episodes of locking and popping have even caused falls, which he has described the knee giving way, throughout the appeal. See, e.g., Statement, representative (November 15, 2017). Resolving all reasonable doubt in the Veteran’s favor, the Board finds it may be conceded the Veteran suffered some meniscal injury during service. In addition, there is objective evidence of right knee meniscal abnormality, clicking, and crepitus during the appeal period. See VA examination (November 2007). Thus, the Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258. See 38 C.F.R. § 4.20; see also Lyles v. Shulkin, No. 16-0994, 2017 U.S. Vet. App. LEXIS 1704, at *10 (Nov. 29, 2017) (holding that the evaluation of a knee disability under Diagnostic Code 5257 and Diagnostic Code 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under Diagnostic Code 5258). 3. Limitation of Flexion With regard to limitation of flexion, the Board finds that the Veteran is entitled to a 30 percent rating. Under Diagnostic Code 5260, limitation of flexion of the leg is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a. In evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Additionally, examinations “should record the results of range of motion testing ‘for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing,’ as well as the necessary findings to evaluate functional loss during flare-ups. Correia v. McDonald, 28 Vet. App. 158, 170 (2016) (quoting 38 C.F.R. § 4.59). Initially, the Board notes that while the May 2017 and January 2018 VA examiners tested range of motion for pain on both active and passive motion and in weight-bearing and nonweight-bearing, none of the VA examiners were able to estimate the degree of functional limitation during flare ups and after repetitive use. The January 2018 VA examiner opined that such failure is due to a deficiency in state of general medical knowledge. The examiner explained that based on consideration of all procurable and assembled data as well as the lack of knowledge of the medical community at large, it is not possible to predict within a reasonable degree of medical certainty any decreased functional ability with repetitive use over a period of time without resorting to speculation. In light of the reasoning in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Board finds that the January 2018 VA examiner adequately explained why he could not estimate the degree of functional limitation during flare ups and after repetitive use without resorting to speculation. Here, the VA examination reports show that flexion was limited, at worst, to 30 degrees, considering pain, which warrants a 20 percent rating under Diagnostic Code 5260. See, e.g., VA examination (January 2018). Significantly, however, the lay and medical evidence of record further shows pain on weightbearing and nonweight bearing as well as additional limitation of motion during flare-ups, which examiners consistently report further limits ambulation. Having fully considered such additional functional limitation, the Board finds that the Veteran’s symptoms more nearly approximate the criteria for a 30 percent rating under Diagnostic Code 5260. Finally, the Board finds that a 30 percent rating under Diagnostic Code 5260 is warranted throughout the pendency of the appeal as the Veteran has consistently reported a continuation of the same knee symptoms since his claim for increase. 4. Limitation of extension With regard to limitation of extension, the Board finds that the Veteran is entitled to a 10 percent rating. Under Diagnostic Code 5261, when extension is limited to 5 degrees, a 0 percent rating is assigned under Diagnostic Code 5261. Extension limited to 10 degrees is assigned a 10 percent rating. A 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a. Here, the November 2007 VA examination report shows that extension was limited to 10 degrees, which warrants a 10 percent rating. Even though the Veteran was able to achieve full extension during all subsequent VA examinations, after resolving any doubt in the Veteran’s favor, the Board finds that a 10 percent rating is warranted throughout the pendency of the appeal as the Veteran has reported a continuation of symptoms throughout the appeal. The Board further finds that the preponderance of evidence is against a rating in excess of 10 percent for limitation of extension as none of the lay or medical evidence shows that the Veteran’s right knee disability more nearly approximates limitation of extension to 15 degrees or more, to as due to pain or during flare-ups. Accordingly, a 10 percent rating, but not higher, for limitation of extension is warranted. 5. Special Monthly Compensation Special monthly compensation (SMC) on the basis of being housebound is assigned where a veteran has, in addition to a single, permanent service-connected disability rated 100 percent disabling, (1) additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In this case, the Board notes the Veteran has been in receipt of a 100 percent disability rating for bipolar disorder since January 25, 2012. As a result of the Board’s decision herein, granting a combined 60 percent rating for the Veteran’s right knee disability, effective prior to January 25, 2012, the Veteran meets the criteria for SMC at the housebound rate from January 25, 2012. In this regard, from January 25, 2012, the Veteran is in receipt of a 100 percent disability for his bipolar disorder as well as a separate 60 percent rating for his service-connected right knee disability. Under such circumstances, there is no need to establish factually that service-connected disabilities render a veteran substantially confined to his dwelling. Accordingly, SMC based upon housebound status from January 25, 2012, to present, is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel