Citation Nr: 20033063 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 15-04 411 DATE: May 12, 2020 ORDER A rating in excess of 10 percent for right knee arthritis is denied. FINDING OF FACT The evidence shows that the Veteran’s right knee arthritis is manifested with pain and limitation of motion but does not result in right knee flexion limited to 30 degrees, extension limited to 10 degrees, recurrent subluxation or lateral instability. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for right knee arthritis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 2002 to October 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by a May 2018 Board decision for further development and a current VA examination. Following the promulgation of a January 2020 supplemental statement of the case continuing the 10 percent rating, the case was returned to the Board for its adjudication. Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 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. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. A rating in excess of 10 percent for right knee arthritis Rating Criteria for Knee Disabilities Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Other knee impairment including recurrent subluxation or lateral instability warrants a 10 percent rating if the disability is slight; a 20 percent rating if moderate; and a 30 percent rating if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Evaluation of a knee disability for limitation motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 or 5261 does not preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under 38 C.F.R. § 4.71a, Diagnostic Code 5259. Nor does evaluation of a meniscal disability under § 4.71a, Diagnostic Code 5259 preclude, as a matter of law, separate evaluation of a different disability of the same knee under § 4.71a, Diagnostic Code 5260 or 5261. See Lyles v Shulkin, 29 Vet. App. 107 (2017). As there is no lay or medical evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum, Diagnostic Codes associated with these manifestations do not apply. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2015). Factual Background The Veteran is seeking an increased rating for his service-connected right knee condition. The Veteran’s right knee condition is currently rated as 10 percent disabling under Diagnostic Codes (DCs) 5003-5260. 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. On May 2012 examination initial range of motion (ROM) testing showed right knee flexion limited to 90 degrees with painful motion beginning at 80 degrees, with no limitation of extension. There was no additional limitation on post repetitive-use testing ROM measurements. Muscle strength and joint stability testing were normal. No subluxation was noted. It was noted that the Veteran had a meniscectomy in 2006 which caused residual pain and swelling. On July 2012 VA examination the Veteran described flare-ups as involving sharp swelling, stiffness, weakness and locking. Initial ROM testing showed flexion to 140 degrees and extension to 0 degrees with no objective evidence of painful motion, with no further limitation on post repetitive-use testing ROM measurements. Additional functional loss of the knee after repetitive-use testing was reported as interference with sitting. Muscle strength and joint stability testing were normal, and no subluxation was noted. Frequent episodes of joint pain were detailed as a residual of a right meniscectomy. The occasional use of a brace was also recorded. On October 2014 VA examination initial ROM testing showed flexion limited to 100 degrees and extension to 0 degrees with objective evidence of painful motion at 0 degrees on extension. There was no additional limitation on post repetitive-use testing ROM measurements. Additional functional loss of the knee after repetitive-use testing was detailed as interference with sitting and pain on movement. Muscle strength and joint stability testing were normal, although pain on palpitation was noted. No subluxation was recorded, and again the examiner found that frequent episodes of joint pain, locking and effusion were residuals of a right meniscectomy. The occasional use of a brace was noted. On a December 2014 VA examination initial ROM testing showed flexion limited to 105 degrees and extension to 0 degrees with no objective evidence of painful motion. The examiner stated that the limitation of ROM on flexion was due to the Veteran’s obesity. There was no additional limitation of ROM on post repetitive-use testing ROM measurements. Additional functional loss of the knee after repetitive-use testing was noted to be interference with sitting, standing, weight-bearing, pain on movement and less movement than normal. Muscle strength and joint stability testing were normal, although pain on palpitation was documented. No subluxation was recorded, and again the examiner found that frequent episodes of joint pain, locking and effusion were residuals of a right meniscectomy. The occasional use of a brace was noted. On a January 2019 VA examination initial ROM testing showed flexion limited to 125 degrees and extension to 0 degree, with painful motion on flexion and on weight-bearing. There was no additional limitation on post repetitive-use testing ROM measurements. Pain and lack of endurance were noted to limit functional ability with repeated use, and additional functional loss of the knee after repetitive-use testing was recorded as interference with sitting, standing, weight-bearing, pain on movement and less movement than normal. Muscle strength and joint stability testing were normal, although pain on palpitation, shin splints and regular use of a brace were noted. The examiner did not endorse any evidence of pain on passive ROM testing and on non-weightbearing of the right knee. On a July 2019 examination the Veteran described flare-ups of symptoms to include more intense pain and pressure in the calf and lower leg. He described that his right knee “pops and hurts almost constantly.” Initial ROM testing showed flexion limited to 45 degrees and extension to 0 degrees, with painful motion on flexion and extension as well as pain on weight-bearing, non-weightbearing and objective evidence of crepitus. There was additional limitation on post repetitive-use testing ROM measurements with flexion limited to 40 degrees and extension to 0 degrees. Pain was noted to cause functional loss with repeated use, estimated as further limiting ROM to 35 degrees on flexion and 0 degrees on extension. The examiner estimated additional functional loss due to pain during flare-ups as limiting ROM to 30 degrees on flexion and to 0 degrees on extension. Muscle strength and joint stability testing were normal, although pain on palpitation was noted. Residuals signs of a meniscectomy included weakness, pain and limitation of motion. It was noted that a July 2019 x-ray showed no evidence of arthritis in the right knee. On a September 2019 VA examination the Veteran subjectively reported crepitus, daily right knee pain and swelling which worsened on weight-bearing. He further endorsed experiencing bilateral shin pain when walking, although he denied flare-ups. Initial ROM testing showed flexion to 120 degrees and extension to 0 degrees, with no pain noted on ROM testing or on palpitation of the joint. No additional functional loss was documented on post-repetitive use ROM testing, and the examiner found that there was no additional functional loss following repeated use over time. It was noted that the Veteran had shin splints and frequent joint pain, swelling and crepitus as a residual of a meniscectomy. No objective evidence of pain on passive range of motion testing or on non-weightbearing was recorded. The September 2019 examiner remarked further that the Veteran displayed a fluid gait and that he wore no brace to the examination suggesting improvement. The examiner also stated that a previous finding that the Veteran had flexion limited to 45 degrees in the right knee was inaccurate as this would not be compatible with sitting in a car or at a desk without the leg almost fully extended. Therefore, the examiner stated that the July 2019 examination report of flexion limited to 45 degrees was not consistent with the Veteran’s diagnosis of degenerative arthritis. During a February 2018 Board hearing the Veteran described sharp pain and swelling in his right knee. He also reported symptoms of what he believed to be instability in the right knee explaining his experiencing of “popping” sensations daily. Analysis Based on the above evidence, the assigned 10 percent rating for right knee traumatic arthritis based on painful motion of the knee and x-ray evidence of traumatic arthritis adequately encompasses the Veteran’s symptoms. 38 C.F.R. § 4.71, 4.59, DC 5003-5260. Initially, the evidence of record does not document x-ray involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 CFR 4.71a. The evidence shows that the Veteran’s arthritis due to trauma of the right knee is manifested with pain and limitation of motion but does not result in right knee flexion limited to 30 degrees, as would be necessary to warrant a 20 percent rating. DC 5260. At worst, the Veteran’s right knee flexion was limited to 45 degrees on the July 2019 examination, which is consistent with the currently assigned 10 percent rating. That being said, the September 2019 VA examiner stated that this prior finding did not comport with the rest of the objective medical evidence of record because flexion limited to 45 degrees would result in the Veteran being precluded from sitting in a car or at a desk without his leg nearly fully extended, and the evidence does not show nor has the Veteran alleged this degree of incapacitation. The Board therefore cannot ascribe significant probative value to the results of the testing done on the July 2019 examination for the purpose of rating the Veteran’s right knee disability because, when viewed in context with the preponderance of the objective medical evidence, they are anomalous. Additionally, the preponderance of the evidence is against the Veteran having a compensable level of extension to be entitled to a separate compensable rating for limitation of extension. Specifically, the Board notes that none of the objective ROM testing of record has shown any documented functional limitation of extension of the knee. Consequently, the Veteran’s limitation of extension is noncompensable under DC 5261 and he is not entitled to either a separate or a higher rating under this DC. The Board acknowledges that the evidence intermittently documents symptoms which cause painful motion and functional impairment. More specifically, at various examinations throughout the appeal period, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The Board does acknowledge that the July 2019 examiner estimated the Veteran’s limitation of flexion at 30 degrees during a flare-up; however, this is the only examination of record in which an estimated increase in severity arose to the level of the next highest rating for limitation of flexion. The subsequent September 2019 examiner did not find that the limitation of flexion was nearly as severe as reported on the previous July 2019 examination, and no earlier examinations found evidence of flare-ups which approached this level of severity as well. Without any consistency in the reporting of symptomatology of this severity, the Board must once again conclude that this finding is anomalous when considered in the context of the Veteran’s objective medical history. In short, the Board does not find that the Veteran’s subjective reports of flare-ups of symptomatology and functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing and weakness arise to the severity sufficient to warrant the next highest disability rating for loss of flexion under DC 5260. 38 C.F.R. §§ 4.40, 4.45; Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206 -207 (1995). Moreover, the Board notes that the Veteran did not endorse experiencing any flare-ups in pain on the most contemporary examination dated in September 2019, which further supports a determination that the severity of the Veteran’s pain and loss of range of motion is commensurate with the currently assigned 10 percent rating. Finally, VA’s General Counsel has held that separate ratings under Diagnostic Code 5257 (recurrent subluxation or lateral instability) may be assigned for a disability of the same joint. Despite the Veteran’s lay reports of what he felt was instability in the right knee during his hearing testimony, no objective instability testing of record has noted recurrent subluxation or lateral instability in the Veteran’s right knee. The Board must ascribe more probative value to the objective medical testing of record as the Veteran lacks the competency to objectively evaluate the severity of his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, a separate rating for instability is not warranted. VAOPGCPREC 9-2004, 69 Fed. Reg. 59990 (2004). (Continued on the next page)   The Board finds that the objective medical testing results recorded in various in-person examination reports of record are the most probative for assessing the current severity of the Veteran’s right knee disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent to observe his right knee symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his right knee disability. Jandreau, supra. In summary, the Board notes that the probative medical evidence of record does not reflect symptomatology that warrants a disability rating in excess of 10 percent for right knee arthritis. 38 C.F.R. § 4.71a, DC 5003-5260. C. M. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.