Citation Nr: 20032553 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 17-05 676A DATE: May 8, 2020 ORDER A rating in excess of 10 percent for a left knee disorder prior to November 5, 2018, is denied. A rating of 40 percent, but no more, for a left knee disorder, based on limitation of extension, is granted effective November 5, 2018. A rating in excess of 10 percent for left thigh disorder prior to November 5, 2018, is denied. A rating of 30 percent, but no more, for a left thigh disorder, based on limitation of flexion, is granted, effective November 5, 2018. A rating in excess of 10 percent for a right thigh disorder prior to November 5, 2018, is denied. A rating of 20 percent, but no more, for a right thigh disorder, based on limitation of flexion, is granted effective November 5, 2018. REMANDED Entitlement to a rating in excess of 30 percent for a psychiatric disorder is remanded. Entitlement to a total disability individual unemployability (TDIU) rating is remanded. FINDINGS OF FACT 1. From November 5, 2018, the Veteran’s left knee disorder has exhibited limitation of flexion to 25 degrees, limitation of extension to 30 degrees, and favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees; however, joint instability has not been shown. 2. From November 5, 2018, the Veteran’s left thigh disorder has exhibited limited flexion of the left hip to 20 degrees, limited extension of the left hip to 10 degrees, and favorable ankylosis in flexion at angle between 20 and 40 degrees with slight abduction or adduction. 3. From November 5, 2018, the Veteran’s right thigh disorder has exhibited limited flexion of the right hip to 30 degrees, limited extension of the right hip to 10 degrees, with no signs of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no more, for a left knee disorder, based on limitation of extension, have been met effective November 5, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5003, 5262. 2. The criteria for a rating of 30 percent, but no more, for a left thigh disorder, based on limitation of flexion, have been met effective November 5, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5024, 5252. 3. The criteria for a rating of 20 percent, but no more, for a right thigh disorder, based on limitation of flexion, have been met effective November 5, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.14, 4.40, 4.45, 4.71a, DCs 5003, 5024, 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to March 1992 and again from December 2004 to February 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, FL. The issues of entitlement to an increased rating for a psychiatric disorder, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). Increased Rating The Veteran seeks increased initial ratings for a left knee disorder rated as 10 percent disabling, a left thigh disorder rated as 10 percent disabling, and a right thigh disorder rated as 10 percent disabling. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. 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 separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 enervation, 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. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 10 percent for a left knee disorder. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. Limitation of Motion Prior to November 5, 2018 Currently the Veteran’s left knee disorder is rated at 10 percent under 38 C.F.R. § 4.71a, DC 5260. However, the rating decision in September 2013 reflects that this rating was assigned based on painful motion under DC 5003. This rating is to be combined with, and not added to, any subsequent rating. As an initial matter, the Board determines that a rating in excess of 10 percent is not warranted prior to November 5, 2018. Specifically, in cases where a veteran has a noncompensable rating for a musculoskeletal disability, a compensable rating under 38 C.F.R. § 4.59 is for consideration when there is evidence of painful motion, even in cases where actual limitation of motion or loss of motion that is non-compensable. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, in this case, the Veteran has been diagnosed with right knee arthritis. See also 38 C.F.R. § 4.71a, DC 5003. Specifically, in order to warrant an increased rating in the right knee based solely on limitation of motion or traumatic arthritis, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or, • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). See 38 C.F.R. § 4.71a. The Veteran was afforded a VA examination in April 2013 for his left knee disorder. The Veteran complained of pain with motion, and a history of knee surgery. He displayed a mild antalgic gait. The Veteran visibly expressed pain with the range of motion exercises. He displayed flexion limited to 110 degrees, and extension limited to 10 degrees in the left knee. The Veteran expressed that he did not presently have flare ups. Thus, his left knee impairment at that time had continued to display the characteristics of its current 10 percent rating. The Veteran has several VA treatment records from 2011 on where he noted that he experienced pain due to his left knee disorder including the necessity for an assistive device. Aggravating factors included daily activities such as walking, driving, sitting and climbing steps. Unfortunately, those treatment records did not include range of motion testing which the Board may rely upon to rate under the diagnostic criteria. In fact, a July 2018 VA treatment note stated he had normal flexion in his knee. Thus, prior to the November 05, 2018 VA examination there was no evidence of the need to increase the Veteran’s rating for his left knee disorder. After November 05, 2018 The Board finds that the Veteran should be granted a 40 percent rating based on limitation of extension from November 5, 2018. On November 5, 2018, the Veteran had a VA doctor complete a disability questionnaire related to his left knee impairment, which is most recent, where he exhibited extension limited to 30 degrees in the left knee with all the previous symptoms including pain with movement and other functional loss. This is the earliest piece of evidence that the Board can rely upon to increase the Veteran’s rating for his left knee disorder. A rating of 40 percent coincides with the level of extension impairment the Veteran displayed during the exam. There is no evidence of a limitation of flexion beyond this point; therefore, a rating beyond 40 percent should not be granted. As such, a 40 percent disabling rating is granted as of November 5, 2018 under 38 C.F.R. § 4.71a, DC 5261. Instability Next, the Board has considered whether a separate rating is warranted based on either instability or range of motion. First, in order to warrant a separate rating based on instability, the evidence must show slight symptoms of recurrent subluxation or lateral instability (10 percent under DC 5257). See 38 C.F.R. § 4.71a. Based on the evidence, the Board determines that a separate compensable rating is not warranted based on instability. Specifically, during a VA examination in April 2013, the Veteran reported pain, stiffness, weakness, and instability in his left knee which affected his ability to walk and stand; however, the examiner did not find joint instability or instability of station. Similarly, the November 2018 examiner also did not find joint instability or instability of station. As a result, given the lack of instability symptoms, the Board concludes that a separate compensable rating based on instability for the left knee during any period on appeal is not warranted. 2. Entitlement to a rating in excess of 10 percent for a left thigh disorder 3. Entitlement to a rating in excess of 10 percent for a right thigh disorder The Veteran is currently rated at 10 percent for myositis of the right and left thighs under 38 C.F.R. § 4.71a, DC 5252. Under this diagnostic code, disability ratings are assigned based on limitation of the affected parts, as arthritis. In this case, the Veteran’s currently has a 10 percent rating based on limitation of motion of the right and left thighs under DC 5252. In order to warrant a rating in excess of 10 percent the evidence must show: • Favorable ankylosis in flexion at an angle between 20 and 40 degrees, and slight adduction or abduction (60 percent under DC 5250); • Limitation of thigh flexion to 30 degrees or less (20 percent under DC 5252); or • Impairment of the thigh abduction to 10 degrees or less (20 percent under DC 5253). 38 C.F.R. § 4.71a. Prior to November 5, 2018 Here, an increased rating in excess of ten percent is not warranted for either thigh prior to November 5, 2018. The Veteran has several VA treatment records from 2011 on where he noted that he experienced pain due to his bilateral thigh disorder including the necessity for an assistive device. Aggravating factors included basic movement such as sitting and standing. Unfortunately, those treatment records did not include range of motion testing which the Board may rely upon to rate under the diagnostic criteria. In fact, a July 2018 VA treatment note stated that his left thigh wound was almost completely healed and that he had normal flexion in his hip. Thus, prior to the November 5, 2018 VA examination there was no evidence of the need to increase the Veteran’s rating for his left thigh disorder. Also, the Veteran was afforded a VA examination in April 2013 where his left thigh limitation of flexion was 60 degrees and right thigh limitation of flexion was 80 degrees. The extension was limited to zero degrees for the left and right hip. It was noted that he experienced weakness and pain with movement. He required an assistive device, and some functional loss was also noted. Thus, prior to the November 5, 2018 VA examination there was no evidence of the need to increase the Veteran’s rating for his bilateral thigh disorder. After November 5, 2018 On November 5, 2018, the Veteran was afforded another VA examination, which is most recent, where he exhibited flexion limited to 20 degrees in the left thigh and flexion limited to 30 degrees in the right thigh with all the previous symptoms including pain with movement and other functional loss. The Veteran’s extension in both the left and right hip were limited to ten degrees. He also displayed favorable ankylosis in the left thigh in flexion at an angle between 20 and 40 degrees with slight abduction or adduction. This is the earliest piece of evidence that the Board can rely upon to increase the Veteran’s rating for his bilateral thigh disorder. As such a rating 60 percent for the left hip is consistent with him displaying the aforementioned level of ankylosis during the exam. He did not exhibit a greater level of ankylosis per the examiner. Thus, a rating in excess of 60 percent is not warranted for his left thigh disorder. A rating of 20 percent coincides with the level of flexion impairment the Veteran displayed in his right hip during the exam. There is no evidence of a limitation of flexion beyond this point. Therefore, a rating beyond 20 percent should not be granted for the Veteran’s right thigh disorder. As such, a 60 percent disabling rating is granted as of November 5, 2018 under 38 C.F.R. § 4.71a, DC 5250 for the left thigh disorder, and a 20 percent disabling rating is granted as of November 5, 2018 under 38 C.F.R. § 4.71a, DC 5252 for the right thigh disorder. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has complained that he is limited in performing physical activities of daily living due to pain. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Of note, the November 2018 exam did not show evidence of additional loss of motion or functioning after repetitive testing, flare-ups, and/or weight bearing that would warrant a higher rating. The Board has also considered whether a higher evaluation under another diagnostic code is appropriate. There is no evidence indicating a flail joint or fracture of the shaft or neck of the femur; therefore, no higher rating under DCs 5254 or 5255 is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for a psychiatric disorder is remanded. 2. Entitlement to a TDIU rating is remanded. The Veteran testified that his psychiatric disorder has worsened, and submitted additional lay evidence from family members stating that his psychiatric condition has worsened. Additionally, the Veteran’s VA treatment records reflect a post-traumatic stress disorder diagnosis, but his prior VA mental health examinations have been for psychiatric disorders other than post-traumatic stress disorder. Therefore, the Veteran should be afforded a new examination in order to accurately assess the current level of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); cf. VAOPGCPREC 11-95 (April 7, 1995). Further, to the extent that a change in rating may influence the implied claim for total disability individual unemployability (TDIU), that issue must be remanded as well as, inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The matters are REMANDED for the following action: 1. Obtain any and all treatment records from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to determine the current severity of his psychiatric disorder. With respect to a psychiatric disorder, the examiner should identify all current psychiatric disorders found on examination, and complete the correct disability benefits questionnaire. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel .