Citation Nr: 20005286 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 07-11 193 DATE: January 22, 2020 ORDER Entitlement to an evaluation in excess of 10 percent for instability of the right knee is denied. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the right knee with limited motion is denied. Entitlement to an initial evaluation in excess of 10 percent for left hip disability with arthritis and limitation of extension of the thigh is denied. REMANDED Entitlement to an effective date prior to January 10, 2017, for the award of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s instability of the right knee has been manifested by no more than slight recurrent subluxation or recurrent instability. 2. Throughout the appeal period, the Veteran’s degenerative arthritis of the right knee with limited motion has been manifested by x-ray evidence of degenerative arthritis with complaints of pain and limited motion. 3. Throughout the appeal period, the Veteran’s left hip disability with arthritis and limitation of extension of the thigh has been rated as 10 percent disabling, which is the maximum schedular rating permitted for limitation of extension of the thigh. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for an initial evaluation in excess of 10 percent for degenerative arthritis of the right knee with limited motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010. 3. The criteria for an initial evaluation in excess of 10 percent for left hip disability with arthritis and limitation of extension of the thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1977 to July 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2005, November 2006, and January 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2009, the Veteran testified before a Veterans Law Judge who is no longer with the Board. While the Veteran was informed of this fact and offered the opportunity to testify at a new hearing, he declined. See 38 C.F.R. § 20.700. A transcript of this hearing is of record. In December 2009, the Board issued a decision which denied an extension of a temporary total disability evaluation (TTR) beyond October 1, 2006, based on the need for convalescence following right knee surgery. Thus, the right knee disability issues being adjudicated herein shall exclude consideration of the period of time for which a TTR was assigned, from August 15, 2005, through September 30, 2005. The increased evaluation issues were then remanded for additional evidentiary development. In September 2016, the Board incorporated the issue of entitlement to a TDIU rating into the appeal. It then remanded all of these issues for additional development. In January 2018, the RO issued a rating decision which granted entitlement to a TDIU rating, effective January 10, 2017. The Veteran timely appealed the effective date of this award. In April 2018, the Board remanded the increased evaluation issues for additional evidentiary development; and in June 2018, the Board amended the April 2018 Board remand to include the issue of entitlement to an effective date earlier than January 10, 2017, for the award of a TDIU rating. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to an evaluation in excess of 10 percent for instability of the right knee. The Veteran contends that his instability of the right knee warrants an evaluation in excess of 10 percent. The Veteran’s instability of the right knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for instability of the right knee. The Board has carefully considered the Veteran’s reports about his right knee feeling like it is going to give way or buckle multiple times a day. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that no more than slight symptoms have been indicated, and the evidence does not suggest the presence of symptoms more nearly approximating moderate severity. On his most recent VA examination of the knee, performed in July 2019, the VA examiner noted that there was no history of lateral instability or subluxation. Joint stability testing of the right knee revealed normal findings for anterior stability, posterior stability, medial stability, and lateral stability. His May 2019 VA examination of the knee and lower leg conditions also noted that joint stability testing of the right knee revealed normal findings for anterior stability, posterior stability, medial stability, and lateral stability. Similar findings were also noted on his June 2018, January 2017, and November 2014 VA examinations of the knee and lower leg conditions. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran has previously been assigned a separate 10 percent evaluation for his degenerative arthritis of the right knee based upon limitation of motion. This issue is addressed in full below. The Board has not found any other additional evaluations warranting assignment of a separate rating herein. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, 5263. In August 2019, the RO issued a rating decision granting service connection for surgical scars of the right knee. A notice of disagreement concerning this evaluation has not been received. Thus, this aspect of the Veteran’s right knee disability has been addressed. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an evaluation in excess of 10 percent for instability of the right knee. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the right knee with limited motion. The Veteran’s arthritis of the right knee with limited motion has been evaluated under Diagnostic Code 5010. Diagnostic Code 5010 provides that traumatic arthritis shall be rated under Diagnostic Code 5003, the code for degenerative arthritis. 38 C.F.R. § 4.71(a). VA regulations provided that degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71 (a), Diagnostic Code 5003. Under Diagnostic Code 5260, used in rating limitation of flexion of the knee, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, used in rating limitation of extension of the knee, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations 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. The Veteran’s May 2010 VA examination of the joints noted that the Veteran walked with an antalgic gait, slight limp, which was markedly different as he left and walked down the corridor from the examination. Physical examination of the right knee revealed it to be nontender, with no palpable fluid, and no instability. The report noted that the Veteran could fully extend his right knee four times, with no pain, weakness, fatigue, or lack of endurance. He was also able to fully extend the right knee three times using a 2-pound weight, without pain, weakness, fatigue, or lack of endurance. The examiner noted that the right knee exhibited good strength resistance on flexion and resistance. The report listed a diagnosis of status post arthroscopy of the right knee, with no functional impairment of the right knee shown. The Veteran’s November 2014 VA examination for knee and lower leg conditions noted the Veteran’s complaints of pain on the medial aspect of his right knee, which flares up with cold, damp weather days. The report listed a diagnosis of degenerative arthritis of the right knee. Range of motion testing of the right knee revealed flexion to 0 degrees and extension to 110 degrees, which did not decrease on repetitive use testing. The examiner noted pain on flexion and weight bearing, and localized tenderness and pain on palpation of the right knee. Muscle strength testing of the right knee revealed 5/5 strength in forward flexion and extension, and there were no signs of muscle atrophy. Joint stability tests of the right knee were all normal. The examiner also noted that this condition limits the Veteran’s ability to perform occupational tasks due to pain and limited mobility. A January 2017 VA examination for knee and lower leg conditions noted the Veteran’s complaints of right knee pain, especially going down stairs, and instability. He reported having a brace which he does not wear that often, and occasionally using a walker. Range of motion testing of the right knee revealed extension to 0 degrees and flexion to 110 degrees, with evidence of pain on motion. No additional functional loss or range of motion was seen after repetitive motion testing, and the examiner noted that there was no objective evidence of pain on passive range of motion or weight bearing. Muscle strength testing of the right knee revealed 5/5 strength in flexion and extension, with no muscle atrophy. Joint stability testing revealed normal findings throughout. The right knee exhibited localized tenderness or pain on palpation and crepitus. The examiner noted that the Veteran’s right knee disability was manifested by instability of station, disturbance of locomotion, and interference with sitting and standing. In June 2018 VA examination for knee and lower leg conditions, the Veteran reported constant right knee pain and that he uses a walker constantly to ambulate. Range of motion testing of the right knee revealed extension to 0 degrees and flexion to 120 degrees. There was no additional functional loss shown on repetitive testing. The examiner noted localized tenderness or pain on palpation of the right knee, no evidence of pain with weight bearing, and no crepitus. Muscle strength testing of the right knee revealed 5/5 strength in flexion and extension, with no signs of muscle atrophy. Joint stability testing was all normal. X-ray examination of the right knee revealed an impression of chronic degenerative changes lateral joint space narrowing. The examiner noted functional impact of this condition includes limiting physical activity, use of a walker to ambulate, difficulty bending and walking, and difficulty standing. In May 2019, a VA examination for knee and lower leg conditions was conducted. The Veteran reported pain going down stairs and at night. He also reported that his symptoms worsen with repeated use, cold weather, and sitting for long periods of time. He reported having swelling, clicking and grinding in the right knee, along with a feeling of instability. Range of motion testing of the right knee revealed extension to 0 degrees and flexion to 80 degrees, with pain on motion. There was no loss of motion on repetitive use testing. The VA examiner noted that functional loss due to pain and weakness would occur with repeated use over a period of time reducing the range of motion from extension to 0 degrees and flexion to 70 degrees. The same range of motion was cited as the range of motion expected during a flare up of pain, fatigue and weakness of the right knee. Muscle strength testing of the right knee was 4/5 in flexion and extension, with no muscle atrophy shown. Joint stability testing was all normal. The report noted objective evidence of localized tenderness or moderate pain on palpation of the mediate lateral right knee. The report noted objective evidence of crepitus with no evidence of pain with weight bearing. In July 2019, he underwent his most recent VA examination of the knee and lower extremity conditions. The Veteran reported current symptoms of throbbing pain ranging from 3 to 5 out of 10, which increases with sleep, increased activity, and using stairs. He also reported weakness, fatigue, and instability. Range of motion testing of the right knee revealed extension to 0 degrees and flexion to 90 degrees, with pain noted on flexion which results in functional loss. The report noted objective evidence of mild localized tenderness or pain on palpation of the joint anterior joint line of the knee. The examiner noted evidence of pain with weight bearing and objective evidence of crepitus. Repetitive use testing revealed a range of motion in the right knee consisting of extension to 0 degrees and flexion to 80 degrees. The examiner also opined that the Veteran’s right knee was examined during a flare up and exhibited a reduced range of motion consisting of extension to 0 degrees and flexion to 50 degrees, which was due to pain, fatigue, weakness and lack of endurance. Muscle strength testing was 4/5 in flexion and extension, with no muscle atrophy. Stability testing was all negative. Based upon a longitudinal review of the evidence of record, the Board finds the preponderance of the evidence is against an initial evaluation in excess of 10 percent for arthritis of the right knee with limited motion. Throughout the period on appeal, the arthritis of the right knee with limited motion has manifested by x-ray evidence of degenerative arthritis with complaints of pain and limited motion. The limitation of motion exhibited by the Veteran’s right knee was noncompensable throughout. All examinations indicated that his right knee exhibited extension to 0 degrees regardless of testing method. This would not warrant a compensable evaluation under Diagnostic Code 5261, which directs that extension limited to 5 degrees warrants a noncompensable evaluation. As for flexion, the Board notes that the Veteran’s most recent VA examination noted that flexion during a flare up would be limited to 50 degrees. Although this limitation of flexion in the right knee approaches assignment of a 10 percent under Diagnostic Code 5260, it would not result in the assignment of a higher evaluation in this matter, but instead just a 10 percent evaluation based on compensable loss of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Accordingly, the Veteran’s degenerative arthritis of the right knee with limited motion is manifested by x-ray evidence of degenerative arthritis with complaints of pain and limited motion. Entitlement to an evaluation in excess of the currently assigned 10 percent rating is not shown at any point during the appeal period. Thus, an evaluation in excess of 10 percent is not warranted at any point during this rating period. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in a higher compensable evaluation than currently assigned. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. at 107. The Veteran currently receives a separate 10 percent evaluation based upon instability of his right knee. Moreover, as noted above, the Board does not find an increased evaluation based upon a compensable evaluation due to limited motion to be warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial evaluation in excess of 10 percent for degenerative arthritis of the right knee with limited motion. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial evaluation in excess of 10 percent for left hip disability with arthritis and limitation of extension of the thigh. The Veteran’s left hip disability with arthritis and limitation of extension of the thigh is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251, for limitation of extension of the thigh. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. As the Veteran is in receipt of the highest schedular rating for limitation of extension of the thigh, there is no basis to award a higher rating. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In August 2019, the RO issued a rating decision which granted service connection for at a noncompensable evaluation for left hip arthritis with limitation of abduction and granted service connection at a noncompensable evaluation for left hip arthritis with limitation of flexion. The Veteran has not filed a notice of disagreement contesting the initial evaluations assigned to these disabilities of the left hip. The Board does not find any additional and separate left hip symptomatology that is not currently being addressed. Thus, as the Veteran’s left hip disability with arthritis and limitation of extension of the thigh has already has the maximum schedular disability rating, the appeal is denied. REASONS FOR REMAND 1. Entitlement to an effective date prior to January 10, 2017, for the award of a total disability rating based upon individual unemployability is remanded. Pursuant to the Board’s June 2018 remand, the RO was to obtain a medical opinion concerning the effect of the Veteran’s service-connected disabilities on his ability to obtain and retain substantial gainful employment. Thereafter, the RO was to readjudicate this issue. Although a medical opinion was obtained, there has not been substantial compliance with the Board’s previous remand directives as this issue has not been readjudicated. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Re-adjudicate whether the Veteran is entitled to an effective date earlier than January 10, 2017 for a TDIU rating, with consideration of all evidence received since the January 2018 supplemental statement of the case. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.