Citation Nr: 20002603 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 13-26 003 DATE: January 14, 2020 ORDER Entitlement to a rating higher than 30 percent for a right knee disability is denied. Entitlement to a rating higher than 20 percent for a left knee disability is denied. REMANDED Entitlement to service connection for a low back disability secondary to service-connected bilateral knee disability is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran’s right knee disability manifested by limitation of extension to 15 degrees with pain on motion; flexion was consistently limited to a noncompensable degree; there is no credible evidence of instability 2. For the entire rating period on appeal, the Veteran’s left knee disability manifested by limitation of extension to 15 degrees with pain on motion; flexion was consistently limited to a noncompensable degree; there is no credible evidence of instability. CONCLUSIONS OF LAW 1. For the entire rating period on appeal, the criteria for a rating higher than 30 percent for a right knee disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5257, 5260, 5261. 2. For the entire rating period on appeal, the criteria for a rating higher than 20 percent for a left knee disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5257, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July1985 to October 2006. In July 2017, the Board restored a 30 percent rating for a right knee disability and remanded the above-mentioned issues to obtain outstanding treatment records and provide the Veteran with adequate VA examinations. Specifically, the Board asked that the RO associated with the claims file outstanding VA treatment records, to include a May 2017 MRI report and ask the Veteran to identify any outstanding private treatment records. In addition, the VA examiner was asked to consider whether the Veteran had any additional limitation of motion since the date of claim in February 2010. In doing so, the examiner was to consider the evidence of record and the Veteran’s history, and if not possible, clearly explain why, to include whether the prior examinations were an accurate representation of the Veteran’s disability level. Regarding the claimed back disability, the examiner was to determine whether it was at least as likely as not related to service and/or was caused or aggravated by the service-connected bilateral knee disabilities. Subsequent to the Board’s remand, the Veteran indicated that he had no additional evidence to submit and the RO associated with the claims file VA treatment records dated from 2010 to 2019, to include the May 2017 MRI report. Increased Rating – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Right and Left Knee Disabilities For the entire rating period on appeal, the Veteran’s right knee disability is rated as 30 percent disabling and the left knee is rated as 20 percent disabling pursuant to Diagnostic Code (DC) 5024-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the hyphenated diagnostic code implies tenosynovitis, manifested by limitation of extension of the knee. DC 5024 provides that tenosynovitis is to be rated based on limitation of motion of the affected parts, as degenerative arthritis (except in cases involving gout). 38 C.F.R. § 4.71, DC 5024. Knee disabilities can be rated under DCs 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263. 38 C.F.R. § 4.71a. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words “slight,” “moderate” and “severe” as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6; Sellers v. Wilkie, 30 Vet. App. 157 (2018). DC 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. DC 5260 provides for the evaluation of limitation of flexion of the knee. A non-compensable 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. 38 C.F.R. § 4.71a, DC 5260. 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 52561 Under DC 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5263. Genu recurvatum is a hyperextension of the knee. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (30th Ed. 2003) at 765. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Instability of the knee and limitation of motion of the knee are two separate disabilities. Likewise, limitation of motion based on extension and flexion are also permissible as affecting separate planes of movement. As such, it is permissible to award separate ratings under a range of motion code and an instability code, without violating the prohibition on pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 For the reasons expressed below, the Board finds that a rating higher than 30 percent for a right knee disability and higher than 20 percent for a left knee disability is not warranted. Turning to the evidence, according to March 2011 VA treatment records the Veteran had history of knee pain, for which Motrin did not help. He complained of increasing knee pain for seven months, which was described as sharp and throbbing. The Veteran was measured and fitted with a neoprene knee sleeve. Subsequent treatment records dated in April 2011 noted that the Veteran continued to complain of bilateral knee pain. He had mild crepitus and x-rays showed mild spurring. In a May 2011 statement in support of claim, the Veteran indicated that his knees caused him trouble. He noted that he was prescribed various medications, creams, and knee braces. He added that he was asking for increased rating because he did not believe he could continue to complete his work duties as a motor vehicle operator for much longer. In May 2011, the Veteran underwent a VA examination to help determine the severity of the right and left knee disabilities. The Veteran complained of bilateral knee pain present essentially all the time and described as 8 out of 10 in intensity. The pain was associated with swelling, locking, and instability. Activity, especially prolonged standing and sitting aggravated his symptoms. He never had a knee surgery or received any injections or therapy but took various medications and used cream for relief. Regarding functional impairment, the examiner noted that at the time of the examination the Veteran worked as a driver and the job was affected because he was not as productive, and he would have been otherwise. He had difficulty driving for any length of time because of prolonged sitting and the resulted knee pain. The Veteran reported flare-ups that typically came “out of nowhere” and resolved with rest and pain medication. The Veteran was unable to identify any aggravating factors that caused the flare-ups. Upon physical examination, the Veteran was unable to fully extend either knee to 0 degrees but rather extension was to 15 degrees and flexion to 115 degrees with pain throughout the entire range of motion, which was not additionally limited following repetitive use during the examination. There was evidence of tenderness over the patellofemoral joint and over the patellar tendon itself. Otherwise, the knees were without warmth, redness, swelling, or crepitus, and the knee was stable to varus and valgus stressing. The diagnoses were bilateral degenerative joint disease (DJD) and patellar tendonitis. His knees were stable to varus and valgus stressing, and anterior/posterior drawer, McMurray’s and Lachman’s testing were all normal. According to subsequent VA treatment records, the Veteran continued to complain of bilateral knee pain. In June 2013, the Veteran underwent an additional VA examination, at which time the examiner confirmed a diagnosis of bilateral knee DJD. The Veteran reported when going up stairs the knees would “give out” and he had constant pain in both knees. He added that the symptoms worsened in the previous year and reported having flare-ups, which he described as increased pain with increased use. Upon physical examination, range of motion revealed flexion to 120 degrees and extension to 0 degrees with no objective evidence of painful motion, bilaterally. The same range of motion was recorded after repetitive use testing. Regarding functional loss, the examiner indicated that the Veteran had functional loss/impairment due to less movement than normal and disturbance of locomotion. There was evidence of tenderness/pain on palpation of the joint line/soft tissue. Muscle strength testing was normal throughout. Joint stability tests were normal, bilaterally, and the examiner indicated that there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran used knee braces regularly. According to subsequent VA treatment records dated from 2013 to 2017, the Veteran continued to complain of bilateral knee pain. Notably, an October 2016 treatment record documented range of motion of both knees, which revealed right knee flexion to 90 (95 passive) and extension to 5 degrees and left knee flexion to 120 degrees and extension to 5 degrees. In May 2017, the Veteran underwent an additional VA examination, at which time the examiner rendered diagnoses of bilateral patellofemoral pain syndrome and bilateral patella spurring. The Veteran reported having pain with going up and down stairs and prolong standing/walking for about an hour. He had no surgeries and received no injections but wore knee braces regularly. The Veteran reported having flare-ups, which he described as flares with increased standing/walking for more than one hour, which limited mobility, and pain with going up and down stairs. The Veteran reiterated the same regarding functional loss/impairment. Upon physical examination of the knees, range of motion revealed right knee flexion to 90 degrees and extension to 10 degrees and left knee flexion to 85 degrees and extension to 10 degrees. The examiner noted that range of motion itself did not contribute to functional loss and pain was noted on examination but also did not result in or cause functional loss. There was evidence of pain with weight bearing and tenderness to palpation, bilaterally. There was no additional functional loss or range of motion after repetitive use testing with three repetitions. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran’s statement describing functional loss with repetitive use over time and/or during flare-ups and concluded that determining whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time could not be done without resorting to mere speculation since the Veteran was not examined under these conditions. Muscle strength testing was normal throughout with no evidence of muscle atrophy. There was no ankylosis or history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner noted “Not indicated” regarding performance of joint stability testing. It was noted that the Veteran used knee braces constantly and occasionally used a cane. Subsequent to the Board’s July 2017 remand, a May 2017 MRI report was associated with the claims file, which showed right knee patellofemoral degenerative changes and suprapatellar spur formation. According to subsequent VA treatment records dated from 2017 to 2019, the Veteran continued to complain of bilateral knee pain. Thereafter, in May 2019, the Veteran underwent an additional VA examination, at which time the examiner confirmed diagnoses of right knee patellar tendonitis and left knee DJD and patellar tendonitis with arthritis in both knees. The Veteran reported constant throbbing bilateral knee pain. He denied having flare-ups but noted that he had constant pain. He was prescribed Ibuprofen and had intra-articular injections, but without significant improvement. The Veteran reported having functional loss/impairment due to inability to squat, run, and perform high impact activities. Upon physical examination, range of motion revealed right knee flexion to 100 degrees with extension to 0 degrees and left knee flexion to 95 degrees and extension to 0 degrees. The examiner indicated that range of motion itself did not contribute to functional loss, but pain was noted on examination and caused functional loss. There was no evidence of pain with weight beating or evidence of crepitus, bilaterally. The examiner noted that there was objective evidence of pain on passive range of motion but no evidence of pain on non-weight bearing testing of both knees. The examiner explained that it was not clinically possible to provide weight bearing range of motion assessment in this clinical setting and doing so in a Veteran that used knee braces regularly was not clinically appropriate because it could lead to injury. There was no additional loss of functional or range of motion after repetitive use testing. The examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner added that it was not possible to describe any additional loss in terms of range of motion because there was no change in range of motion. Muscle strength testing was normal throughout with no evidence of muscle atrophy. There was no ankylosis or history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing showed no joint instability, bilaterally. After review of all the evidence, lay and medical, the Board finds that a rating higher than 30 percent for a right knee disability and higher than 20 percent for a left knee disability is not warranted. Regarding the Veteran’s limitation of extension, while the record clearly showed that the extension of the knee fluctuated in severity from normal (0 degrees) extension to 15 degrees of extension at worse, the Board will not disturb any currently assigned rating. Nonetheless, limitation of extension of the knee to 15 degrees, warrants a 20 percent rating, which is lower than the assigned rating for the right knee and equal to the assigned rating for the left knee. In other words, even if the Board will accept the worse limitation of extension during the entire rating period on appeal, a rating higher than 30 percent for the right knee and higher than 20 percent for the left knee is not warranted based on limitation of extension pursuant to DC 5261. Next, the Board finds that separate compensable ratings based on limitation of flexion of the knee is also not warranted. Notably, range of motion of the right knee at worse was to 90 degrees and left knee flexion to 85 degrees. In order to receive a compensable rating, flexion of the knee must be to 45 degrees pursuant to DC 5260. Additionally, the Board finds that although the Veteran denied having flare-ups in the most recent VA examination, he reported having flare-ups and functional loss/impairment in all prior examinations. Here, the VA examiners were unable to indicate whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time or during a flare-up. Nevertheless, the record did not otherwise show that the Veteran’s reported symptoms over repeated use or during a flareup were so significant as to meet or approximate the criteria for the next-higher rating; i.e., 15/30 degrees flexion and 20/30 degrees extension. Again, the Veteran’s range of motion revealed flexion to 90 and 85 degrees at worse, which does not meet the criteria for a compensable rating based on limitation of flexion and extension to 15 degrees, which even when considering the reported flare-ups does not more nearly approximate the criteria for a 30 percent rating based on limitation of extension to 20 degrees of the left knee or the criteria for a 40 percent rating based on limitation of extension to 30 degrees for the right knee. Moreover, there was no reduction in range of motion when the Veteran performed repetitive-use testing with three repetitions during all of the examinations discussed above. 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 30 percent rating for the right knee and 20 percent rating for the left knee respectively 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 30 and 20 percent rating under DCs 5260 or 5261. In regard to the Veteran’s subluxation/instability of the knees, the record does not reflect medical evidence of lateral instability. However, in English v. Wilkie, 30 Vet. App. 347, 349 (2018), the Court held that DC 5257 did not require medical evidence of lateral instability for a rating to be assigned. Instead, the Board had to address any relevant lay evidence and compare it to the medical evidence to determine which was more probative, keeping in mind that objective medical evidence was not automatically more probative than lay evidence. Here, the record reflects reports from the Veteran during VA Compensation and Pension examinations noting instability, locking, and swelling. However, a review of this subsequent and separate treatment records does not support such a finding as there are no reports of weakness and instability. During the examinations themselves, the Veteran was consistently found to pass all instability testing. While the Veteran is certainly competent to report symptoms associated with instability, once that competency is met, the Board must consider credibility. In this case, the Board finds that such assertions do not hold up against the internal consistency of other evidence to include actual medical stability testing and his other treatment records. Accordingly, under the facts of this case, the Board finds that the evidence is not sufficient to warrant the assignment of separate ratings for instability of either the right and/or left knees pursuant to DC 5257. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has considered the applicability of other potential diagnostic codes during this period on appeal. As the evidence of record fails to demonstrate ankylosis; cartilage/semilunar dislocation or removal; impairment of the tibia or fibula; or genu recurvatum, the Veteran is not entitled to a higher or separate rating under DCs 5256; 5258; 5259; 5262; or, 5263 respectively. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As such, the Board finds that the Veteran’s claim of increased ratings for right and left knee tenosynovitis, should not be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND A remand is necessary to provide the Veteran with an adequate VA examination for the claimed back disability. In May 2017, the Veteran underwent a VA examination for the claimed back disability, at which time the examiner opined that the condition was less likely than not proximately due to or the result of the Veteran’s service-connected bilateral knee disability. The examiner noted that the Veteran’s diagnosis was degenerative disc disease of the lumbar spine and degenerative joint disease in both knees. The examiner explained that there was no physiologic mechanism, in which degenerative changes in the knees can be the primary casual etiology for the degenerative processes resulting in the diagnosis of degenerative disease. Instead, the examiner concluded that the back disability was likely due to advanced age and normal wear and tear. Here, despite the Board’s request for an opinion on direct, causation, and aggravation, the examiner only provided an opinion regarding causation. Furthermore, the rationale provided is lacking since it stated that it was not the “primary casual etiology,” but did not discuss whether it could be contributory at all to the development of the back disability. In other words, there is no requirement that the causal relationship be “primary.” Accordingly, a new medical opinion must be obtained prior to deciding the claim on the merits. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of the claim. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s low back disability is at least as likely as not related to any incident of active service. The examiner must also state whether his low back disability is either proximately due to a service-connected disability and/or aggravated beyond its natural progression by service-connected disability, to include his service connection knee disabilities. Meredith Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.