Citation Nr: 20037513 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 19-32 440A DATE: June 2, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis is denied. Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s left knee disability has been manifested by osteoarthritis with painful motion. Flexion has not been limited to 45 degrees or less. Extension has not been limited to 10 degrees or more. 2. For the entire period on appeal, the Veteran’s right knee disability has been manifested by osteoarthritis with painful motion. Flexion has not been limited to 45 degrees or less. Extension has not been limited to 10 degrees or more. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating in excess of 10 percent for left knee osteoarthritis have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260. 2. For the entire period on appeal, the criteria for a rating in excess of 10 percent for right knee osteoarthritis have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from October 1997 to July 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 ; 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. This appeal stems from a claim for increase dated received on March 13, 2018. Both the Veteran’s right and left knee disabilities are rated at 10 percent under Diagnostic Code 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 evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the hyphenated code indicates that the Veteran’s disability is evaluated as arthritis based on the criteria found under Diagnostic Code 5003. Relevant to this appeal, Diagnostic Code 5003 directs that the Veteran’s right and left knee disabilities should be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. If limitation of motion is noncompensable, a 10 percent rating should be assigned if objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In other words, a veteran receiving a compensable rating based on painful motion cannot be provided separate ratings for arthritis and painful range of motion, as the arthritis rating criteria defers to the limitation of motion criteria of the individual joint involved, and rating the same manifestation of a disability under different diagnoses would be considered impermissible pyramiding. Lyles v. Shulkin, 29 Vet. App. 107, 113 (2017); 38 C.F.R. § 4.14. In contrast, separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Entitlement to a disability rating in excess of 10 percent for left knee or right knee osteoarthritis, is respectively denied. During the period under review, the Veteran’s knee disabilities were assessed at an August 2018 VA examination. Initial range of motion testing measured left knee flexion from 0 degrees to 130 degrees. Extension was from 130 to 0 degrees. Initial range of motion testing measured right knee flexion from 0 degrees to 120 degrees. Extension was from 120 to 0 degrees. Pain was noted on examination on flexion but not extension for both knees; this pain resulted in functional loss. There was no evidence of pain with weightbearing, but there was objective evidence of crepitus. There was objective evidence of localized tenderness or pain on palpation of the joint and associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions; this did not result in additional loss of function or range of motion for either knee. Although the Veteran was not examined immediately after repetitive use over time, the August 2018 examination was deemed medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner reported that pain was the symptom associated with this functional loss. The examiner provided an estimate in terms of range of motion: with repetitive use over time, left knee flexion would be limited to between 0 degrees and 120 degrees, and left knee extension would be limited to between 120 and 0 degrees. Right knee flexion would be limited to between 0 degrees and 110 degrees, and extension would be limited to between 110 and 0 degrees. Although the Veteran was not examined immediately during a flare-up, the August 2018 examination was also deemed medically consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner again reported that pain was the symptom associated with this functional loss. The examiner reported that the flare-ups of the left and right knee involved swelling, and sharp pain in left knee, usually aggravated by minimal physical activity. He also reported that the flare-ups of the right knee are worse than those of the left knee. The Veteran described flare-ups as impacting running, standing, walking for long periods of time, along with limiting strength and range of motion. The Veteran added that long car rides and plane rides contributed to flare-ups. Importantly, the examiner provided an estimate in terms of range of motion: during flare-ups, left knee flexion would be limited to between 0 degrees and 120 degrees, and left knee extension would be limited to between 120 and 0 degrees. Right knee flexion would be limited to between 0 degrees and 110 degrees, and extension would be limited to between 110 and 0 degrees. Although the August 2018 examiner indicated at one point that the Veteran experienced less movement than normal due to ankylosis, etc., the examiner later clarified that the Veteran was not experiencing any ankylosis. This is clear based on the fact that the Veteran can in fact move his knees. The examiner determined that the Veteran had no history of recurrent subluxation or lateral instability of either knee, but that the Veteran did have a history of recurrent effusion, which had been manifested by swelling with physical activities. The examiner did not observe any joint instability when he tested the Veteran. He did not find that the Veteran had a tibial or fibular impairment, or a meniscal condition. The examiner identified objective evidence of pain on both passive range of motion testing and non-weight bearing testing of the Veteran’s left knee. X-ray diagnostic testing was available to the examiner and documented the presence of arthritis in the Veteran’s knees, which was not otherwise significant. Other treatment records on file do not demonstrate the presence of a more severe disability picture of either knee during the period under review. Based on the evidence of record, a disability rating in excess of 10 percent for the Veteran’s left knee or right knee osteoarthritis is not warranted based on limitation of flexion or extension. Notably, the ranges of motion demonstrated during the appeal period are limited only to a noncompensable degree, to include after repetitive use and during flare-ups. The Veteran has been in receipt of what amounts to at least the minimum compensable rating for limitation of motion for both his left knee and right knee joint. Increased ratings based on limitation of motion under Diagnostic Code 5260 or 5261 are not warranted. Furthermore, separate compensable ratings are not warranted under Diagnostic Code 5257 for recurrent subluxation or instability. 38 C.F.R. § 4.71a. Joint stability testing from this examination was normal. Although an examination years prior to the appeal period dated in 2013 noted the Veteran at times used a knee brace, the Veteran did not report using any assistive devices at his August 2018 examination. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. The Board would expect that had subluxation or lateral instability existed, this testing would have revealed as much. Neither the Veteran nor his attorney has alleged that osteoarthritis of either knee caused the Veteran to experience knee instability, falling, buckling or any giving way. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran has not had a history of problems with his meniscus, or any prior surgery. The Board adds that although swelling was noted at times, the Veteran has not complained of, nor has the evidence shown that he has experienced locking. Thus, separate ratings under Diagnostic Codes 5258 or 5259 are not warranted either. The Board adds the Veteran’s complaints of pain, impacting running, standing, squatting, walking for long periods of time, along with limiting strength and range of motion, as well as the Veteran’s reports that long car rides and plane rides contributed to flare-ups, have been considered. However, even in contemplation of the Veteran’s subjective complaints of pain and limitation, including during flare-ups, the Board finds that the Veteran’s left and right knee disability does not warrant higher or separate ratings. See DeLuca, Mitchell, supra. The AOJ has already afforded the Veteran the benefit of the doubt that he experienced painful functional loss for the entire period on appeal. The VA examination report does not indicate limitation of flexion or extension to a compensable degree at any time; yet, the AOJ assigned a compensable rating anyway to compensate the Veteran for his painful motion. Thus, the Board finds that the Veteran is already in receipt of compensation for his painful knees. For these reasons, higher or separate ratings for the right knee disability are not warranted. Insofar as the Veteran’s attorney has challenged the adequacy of the August 2018 VA examination as it pertaining to assessing functional impairment, to include during flare-ups, the Board notes that the VA examiner performed all testing required to fully assess the severity of the Veteran’s knee disability, and importantly, specifically discussed functional loss—to include after repetitive use, and during flare-ups, providing estimates of additional range of motion loss during those circumstances, in compliance with VA regulation and recent case law. Indeed, the Court of Appeals for Veterans Claims has held that “for an examination to comply with 38 C.F.R. § 4.40, the examiner must ‘express an opinion on whether pain could significantly limit functional ability’ and the examiner’s determination in that regard ‘should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Sharp v. Shulkin, 29 Vet. App. 26, 32 (U.S. 2017) (emphasis in original). As such, the August 2018 is adequate, notwithstanding the Veteran’s attorney’s general assertions to the contrary. The Veteran’s attorney also contends that the Veteran should receive separate ratings for painful range of motion and for arthritis, citing to the fact that the Veteran was originally service-connected for bilateral patellofemoral syndrome, which the AOJ recharacterized as osteoarthritis based on the August 2018 VA examiner’s findings. See November 2019 Substantive Appeal, VA Form 9. Initially, the Board notes that the Veteran’s service-connected disability was recharacterized based on the August 2018 VA examiner’s addendum opinion, noting specifically that the Veteran’s osteoarthritis is an extension of his established diagnosis of patellofemoral syndrome, and that due to previous trauma and patellofemoral syndrome, the Veteran’s current knee condition has progressed to develop osteoarthritis. The evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. Here, the Veteran’s left and right knee disabilities manifest in painful motion of both knees. As discussed above, such symptoms are contemplated by the current 10 percent ratings. Separate disability ratings under any other code, would amount to impermissible pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107, 113 (2017); 38 C.F.R. § 4.14. The Board adds that it has considered whether the 10 percent ratings assigned by the AOJ may be awarded during the one-year look back period prior to his March 13, 2018 date of claim for increase; however, it is not factually ascertainable that an increase in severity for either knee disability occurred during that one-year period. As such, a 10 percent rating may not be assigned earlier than the Veteran’s date of claim. Based on the above, the Board finds that the Veteran’s left and right knee osteoarthritis disabilities are not so severe as to warrant ratings in excess of 10 percent. The benefits sought on appeal must be denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.